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No. 13-5946

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
SARAH JONES, Plaintiff-Appellee, v. DIRTY WORLD ENTERTAINMENT RECORDINGS, LLC, ET AL., Defendants-Appellants.

On Appeal from the United States District Court for the Eastern District of Kentucky No. 2:09-CV-219-WOB Before the Honorable William O. Bertelsman

BRIEF FOR AMICI CURIAE AOL INC., EBAY INC., FACEBOOK, INC., GOOGLE INC., LINKEDIN CORP., MICROSOFT CORP., TUMBLR, INC., TWITTER, INC., AND ZYNGA INC.

November 19, 2013

PATRICK J. CAROME SAMIR C. JAIN WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 (202) 663-6000

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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1 and Sixth Circuit Rule 26.1, Amici Curiae certify the following information: AOL Inc. states that it does not have a parent corporation; as of September 30, 2013, Dodge & Cox owned more than 10% of AOL’s stock. AOL Inc. is not a subsidiary or affiliate of any publicly held corporation, and no other publicly held corporation has a financial interest in the outcome of the litigation by virtue of its participation. eBay Inc. states that it does not have a parent corporation and that no publicly held corporation owns 10% or more of its stock. eBay Inc. is not a subsidiary or affiliate of any publicly held corporation, and no other publicly held corporation has a financial interest in the outcome of the litigation by virtue of its participation. Facebook, Inc. states that it does not have a parent corporation, and no publicly traded corporation owns more than 10% of Facebook’s stock. Facebook, Inc. is not a subsidiary or affiliate of any publicly held corporation, and no other publicly held corporation has a financial interest in the outcome of the litigation by virtue of its participation. Google Inc. states that it does not have a parent corporation and that no publicly held corporation owns 10% or more of Google stock. Google Inc. is not a

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subsidiary or affiliate of any publicly held corporation, and no other publicly held corporation has a financial interest in the outcome of the litigation by virtue of its participation. LinkedIn Corp. states that it does not have a parent corporation and that no publicly held corporation owns 10% or more of LinkedIn stock. LinkedIn Corp. is not a subsidiary or affiliate of any publicly held corporation, and no other publicly held corporation has a financial interest in the outcome of the litigation by virtue of its participation. Microsoft Corp. states that it does not have a parent corporation and that no publicly held corporation owns 10% or more of Microsoft stock. Microsoft Corp. is not a subsidiary or affiliate of any publicly held corporation, and no other publicly held corporation has a financial interest in the outcome of the litigation by virtue of its participation. Tumblr, Inc. states that its parent corporation is Yahoo! Inc., which does not have a parent corporation, and that no publicly held corporation owns 10% or more of Yahoo! Inc.’s stock. Tumblr is not a subsidiary or affiliate of any other publicly held corporation, and no other publicly held corporation has a financial interest in the outcome of the litigation by virtue of its participation. Twitter, Inc. states that it does not have a parent corporation and that no publicly held corporation owns 10% or more of Twitter stock. Twitter, Inc. is not a

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subsidiary or affiliate of any publicly held corporation, and no other publicly held corporation has a financial interest in the outcome of the litigation by virtue of its participation. Zynga Inc. states that it does not have a parent corporation and that no publicly held corporation owns 10% or more of Zynga stock. Zynga Inc. is not a subsidiary or affiliate of any publicly held corporation, and no other publicly held corporation has a financial interest in the outcome of the litigation by virtue of its participation.

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TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT ..........................................................i TABLE OF AUTHORITIES ..................................................................................... v INTEREST OF AMICI CURIAE .............................................................................. 1 SUMMARY OF ARGUMENT ................................................................................. 4 ARGUMENT ............................................................................................................. 7 I. II. SECTION 230 BROADLY IMMUNIZES ONLINE SERVICE PROVIDERS FROM LIABILITY FOR CONTENT PROVIDED BY THIRD PARTIES ......................... 7 THE DISTRICT COURT’S NARROW CONSTRUCTION OF SECTION 230 IS ERRONEOUS ......................................................................................... 11 A. B. III. The District Court Applied the Wrong Standard ................................ 12 The Factors on Which the District Court Relied Do Not Establish a Basis for Losing Section 230 Immunity ........................... 17

THE PREVAILING INTERPRETATION OF SECTION 230 PROMOTES ITS PURPOSES AND HAS BEEN CRITICAL TO THE DEVELOPMENT AND GROWTH OF THE INTERNET ..................................................................... 20 A. B. Section 230 Promotes Free Speech and Online Commerce ........................................................................................... 20 Section 230 Immunity Gives Service Providers Room To Self-Regulate ....................................................................................... 24

CONCLUSION ........................................................................................................ 29 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES CASES Page(s) Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690 (S.D.N.Y. 2009) ............................................................................................. 15 Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 (M.D. Tenn. 2013) .............................................................................................................. 10 Barrett v. Rosenthal, 146 P.3d 510 (Cal. 2006)....................................................... 11 Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) .......................................8, 20, 21, 22 Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000) ............................................................................................... 9 Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998) ..............................10, 15, 16 Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) ...........18, 20, 25 Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. craigslist, Inc., 519 F. 3d 666 (7th Cir. 2008) ...........................................9, 16 Courtney v. Vereb & Angie’s List, Inc., 2012 WL 2405313 (E.D. La. June 25, 2012) .................................................................................................. 9 Dimeo v. Max, 433 F. Supp. 2d 523 (E.D. Pa.), aff’d, 2007 WL 217865 (3d Cir. 2006) ..................................................................................... 9 Doe v. America Online, 783 So. 2d 1010 (Fla. 2001) ............................................. 11 Doe v. MySpace, Inc., 474 F. Supp. 2d 843 (W.D. Tex. 2007) ................................. 9 Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) ................................................. 8 Doe v. MySpace, Inc., 629 F. Supp. 2d 663 (E.D. Tex. 2009) ................................ 15 Eckert v. Microsoft Corp., 2007 WL 496692 (E.D. Mich. 2007)............................ 10 Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) ...................................................................5, 12, 13, 14, 19, 28 FTC v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009) ....................................... 16 v

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Gentry v. eBay, Inc., 121 Cal. Rptr. 2d 703 ............................................................. 18 Goddard v. Google, Inc., 2008 WL 5245490 (N.D. Cal. Dec. 17, 2008) .............................................................................................................. 28 Goddard v. Google, Inc., 640 F. Supp. 2d 1193 (N.D. Cal. 2009) ......................9, 15 Green v. America Online, Inc., 318 F.3d 465 (3d Cir. 2003) ..............................9, 28 Hill v. StubHub, 727 S.E.2d 550 (N.C. Ct. App. 2012) ........................................... 10 Johnson v. Arden, 614 F.3d 785 (8th Cir. 2010) ...........................................8, 16, 28 Jones v. Dirty World Entertainment Recordings, LLC 2013 WL 4068780 (E.D. Ky. Aug. 12, 2013) ................ 11, 12, 17, 18, 24, 27 Jones v. Dirty World Entertainment Recordings, LLC 840 F. Supp. 2d 1008 (E.D. Ky. 2012) ..................................11, 12, 17, 18, 19 Jurin v. Google Inc., 695 F. Supp. 2d 1117 (E.D. Cal. 2010) ................................. 15 Klayman v. Zuckerberg, 910 F.Supp.2d 314 (D.D.C. 2012) ..................................... 9 Murawski v. Pataki, 2007 WL 2781054 (S.D.N.Y. 2007) ........................................ 9 Nemet Chevrolet Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009) ...............................................................................8, 15, 17, 18 Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003), aff’d, 2004 WL 602711 (4th Cir. Mar. 24, 2004) ............................................ 9 Parisi v. Sinclair, 774 F.Supp.2d 310 (D.D.C. 2011).............................................. 17 Parker v. Google, Inc., 422 F. Supp. 2d 492 (E.D. Pa. 2006) ................................... 9 Seaton v. TripAdvisor LLC, 728 F.3d 592 (6th Cir. 2013) ...................................... 10 Shiamili v. The Real Estate Group of New York, 952 N.E.2d 1011 (N.Y. 2011) .................................................................................................... 10 Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) ....................................................................... 24

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Universal Communications Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) .................................................................................................. 9 Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) ..........................passim STATUTES 28 U.S.C. § 4102(c)(1) ............................................................................................. 11 47 U.S.C. § 230(a)(3) ..................................................................................................... 21 § 230(a)(4) ..................................................................................................... 21 § 230(b)(2) ..................................................................................................... 21 § 230(b)(2) ..................................................................................................... 17 § 230(c)(1) ..............................................................................................passim § 230(c)(2) ..................................................................................................... 27 § 230(e) ............................................................................................................ 6 § 230(e)(3) ....................................................................................................... 8 § 230(f)(3) ..............................................................................................5, 7, 12 § 941 .............................................................................................................. 11 LEGISLATIVE MATERIALS H.R. Rep. No. 107-449 (2002) ................................................................................. 11 S. Rep. No. 104-230 (1996) ..................................................................................... 24 141 Cong. Rec. 22,046 ............................................................................................. 25 OTHER AUTHORITIES Booz & Co., The Impact of U.S. Internet Copyright Regulations on Early-Stage Investment (2012), available at http://www.booz. com/global/home/what-we-think/reports-white-papers/articledisplay/impact-internet-copyright-regulations-early-2 ................................. 23 eBay, How to Report inappropriate buying and selling, available at http://pages.ebay.com/help/buy/ report-trading.html#wont .......................... 27 eBay, When eBay may remove or adjust Feedback, available at http:// pages.ebay.com/help/policies/feedback-removal.html.................................. 27

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Facebook Community Standards, available at https://www.facebook. com/communitystandards .............................................................................. 26 Facebook, Report a Violation, available at https://www.facebook. com/help/263149623790594/ ........................................................................ 26 Google Terms of Service, available at https://www.google.com/intl/ en/policies/terms/ ........................................................................................... 26 LinkedIn Professional Community Guidelines, available at http:// help.linkedin.com/app/answers/detail/a_id/34593 ........................................ 27 LinkedIn User Agreement, available at http://www.linkedin.com/ legal/user-agreement ...................................................................................... 26 LinkedIn, Complaints Regarding Content Posted on the LinkedIn Website, available at http://www.linkedin.com/legal/copyrightpolicy#pri-2.................................................................................................... 26 Microsoft Code of Conduct, available at http://windows.microsoft. com/en-us/windows-live/code-of-conduct .................................................... 26 The Twitter Rules, available at http://support.twitter.com/articles/ 18311-the-twitter-rules# ................................................................................ 26 Tumblr Community Guidelines, available at http://www.tumblr.com/ policy/en/community ..................................................................................... 26 Twitter, I’m reporting an abusive user, available at https://support. twitter.com/forms/abusiveuser ...................................................................... 26 YouTube Reporting and Enforcement Center, available at http:// www.youtube.com/yt/policyandsafety/ reporting.html ................................. 26

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INTEREST OF AMICI CURIAE Amici curiae AOL Inc., eBay Inc., Facebook, Inc., Google Inc., LinkedIn Corp., Microsoft Corp., Tumblr, Inc., Twitter Inc., and Zynga Inc. (“Amici”) file this brief to respectfully urge the Court to adhere to the broad interpretation of 47 U.S.C. § 230(c)(1) that has been adopted by courts throughout the nation during the seventeen years since its enactment.1 Amici are providers of interactive computer services: AOL Inc. is a brand company, committed to continuously innovating, growing, and investing in brands and experiences that inform, entertain, and connect the world. The home of a world-class collection of premium brands, AOL creates original content that engages audiences on a local and global scale. AOL helps marketers connect with these audiences through effective and engaging digital advertising solutions. eBay Inc. is a global commerce platform and payments leader, whose businesses include the core ecommerce platform located at www.eBay.com, PayPal, StubHub, and eBay Enterprise (a leading provider of ecommerce and interactive marketing services to enterprise clients). In 2012, eBay’s marketplaces

No party or its counsel authored this brief in whole or in part. No person other than Amici and their counsel contributed money that was intended to fund the preparation or submission of this brief. Defendants-Appellants have consented to the filing of this brief, but Plaintiff-Appellee has not. Amici are simultaneously filing a motion for leave to file this brief. 1

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platforms had more than 110 million active users, and its payments platforms had more than 120 million active registered accounts. Collectively, in 2012, eBay enabled $175 billion of global commerce. Facebook, Inc. provides a free Internet-based social media service that enables its more than one billion users to connect with their friends and family, to discover what is going on in the world around them, and to share what matters to them and to the people they care about. Google Inc. offers a suite of web-based products and services to billions of people worldwide—most notably, its eponymous search engine, as well as other products such as its video-sharing service, YouTube, the Google Play store, Google Maps, Blogger, and its social networking product, Google+. LinkedIn Corp. is the world’s largest professional network on the Internet with more than 259 million members. Microsoft Corp. is a worldwide leader in software, services, and solutions that help people and businesses realize their full potential. These include the Bing search engine and the Windows 8 and Windows Phone 8 app stores. Tumblr, Inc. was founded in 2007 by its CEO David Karp in New York City, and is now a wholly owned subsidiary of Yahoo! Inc. Tumblr’s mission is to serve creators by providing the best products and services, on all platforms, to enable them to create and distribute their work online to the audience that they

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deserve. Tumblr is home to nearly 150 million blogs and over 65 billion posts, which reach an audience of hundreds of millions of people worldwide each month. Twitter, Inc. is a global platform for public self-expression and conversation in real time. Twitter has more than 230 million monthly active users creating approximately 500 million Tweets every day. Zynga Inc. develops, markets, and operates online social games as live services played over the Internet and on social networking sites and mobile platforms. Zynga is a leading online social game developer with approximately 133 million average monthly active users for the three months ending September 30, 2013. Each of the Amici has a substantial interest in the rules governing whether providers of interactive computer services may be liable for unlawful online content generated by third parties. Because they serve as platforms for the online communications and transactions of hundreds of millions of users, Amici have been and/or inevitably will be parties to controversies in which they must raise Section 230 immunity. The vitality of online discourse and commerce made possible by these companies’ interactive services depends in part on their ability to avoid the burdens of litigation and potential liability in cases in which it is alleged that one or more of their users has misused their services to create and disseminate tortious or otherwise unlawful content. As discussed herein, aspects of the district

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court decision in this case significantly depart from the settled interpretation of Section 230 and, if adopted by this Court, would not only contravene Congress’s policies as declared in the statute, but also introduce substantial uncertainty regarding a law that has been a pillar for the growth and success of America’s Internet industry. SUMMARY OF ARGUMENT Amici urge this Court to join the overwhelming consensus of other courts that have interpreted Section 230 as providing interactive computer services with broad immunity against liability for content provided by third parties. The protection afforded by Section 230 has been and remains critical to the development and robustness of the Internet and interactive services such as those provided by Amici. The district court, perhaps in reaction to the particular facts of this case, interpreted Section 230 narrowly and in a manner contrary to the established case law. If upheld, that interpretation would significantly undermine the immunity afforded by Section 230 and undercut Congress’s express intentions when passing the statute. Since Section 230’s enactment in 1996, courts throughout the nation have consistently held that 47 U.S.C. § 230(c)(1) provides interactive computer service providers with broad protection from liability for unlawful content created or developed by their users or other third parties. In particular, as these courts have

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recognized, Section 230 bars a claim whenever (i) the defendant asserting immunity is an interactive computer service provider, (ii) the particular information at issue was provided by “another information content provider,” and (iii) the claim seeks to “treat” the defendant as a “publisher or speaker” of that information. The district court’s decision focused on the second element of Section 230 immunity. Specifically, it addressed the question of what activity by a service provider is sufficient to make it also an “information content provider” of content originating from a third-party user, thereby forfeiting its statutory protection from liability. Under the express terms of the statute, the answer to this question turns on whether the service provider was “responsible, in whole or in part, for the creation or development” of the content at issue. 47 U.S.C. § 230(f)(3). Clearly, Section 230 provides no protection for content a service provider itself authors. Thus, in this case, Section 230 would not apply to claims that the “taglines” created by the defendants were themselves tortious. But the district court went much farther. It held that a service provider is an “information content provider” merely if it “encourages” the submission of a particular type of content. That conclusion is contrary to the case law, including what the district court itself characterized as the principal authority on which it relied, the Ninth Circuit’s en banc decision in Fair Housing Council v.

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Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008). As that court recognized, such an interpretation would undermine the immunity afforded by Section 230. So long as the service provider does not itself participate in creating or developing the particular content alleged to be unlawful—which did not occur here with respect to the allegedly tortious material submitted by users of appellants’ website—and does not otherwise require or force users to submit unlawful content (as happened in Roommates but not here), the language of Section 230 and case law establish that the service provider is immune from claims arising from content provided by a third party.2 As Congress intended, and as Amici can attest from experience, the broad protection provided by Section 230(c)(1) has served as a foundational underpinning for the development and growth of the Internet as a medium for free expression and commerce. It has enabled innumerable online platforms and services through which users can engage in vibrant online speech and interactions. If Section 230’s protection were narrowed, many service providers likely would have to curb such services (e.g., by offering only moderated services) and often would have little choice but to yield to a “heckler’s veto” whenever someone complains that particular content is tortious or unlawful in order to avoid the risk of liability.

Section 230 provides several express exceptions to this immunity, such as for claims under intellectual property laws, but none of those is applicable here. See 47 U.S.C. § 230(e). 6

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The Internet also has enabled new and innovative forms of commerce, including online marketplaces. Again, consistent with Congress’s declared policies, the prevailing interpretation of Section 230(c)(1) allows myriad service providers, ranging from start-ups to established companies with household names, to operate services that support these virtual marketplaces. Such services likely would exist only in much more limited forms if they were faced with a constant threat of litigation and liability for every fraudulent, misleading, or otherwise unlawful listing that any one of their millions of users might post. Amici cannot emphasize enough the degree to which the protection afforded by Section 230(c)(1), as consistently interpreted by courts, has played a critical role in fostering the development and growth of interactive services that both empower users and encourage innovation and self-regulation. Amici therefore respectfully urge this Court to embrace the settled interpretation of Section 230 and to reject the undue limits that the district court decision would place upon it. ARGUMENT I. SECTION 230 BROADLY IMMUNIZES ONLINE SERVICE PROVIDERS FROM LIABILITY FOR CONTENT PROVIDED BY THIRD PARTIES The plain language of Section 230 bars suits against web sites and other interactive service providers predicated on content that was “creat[ed] or develop[ed]” by third parties and not by the provider. 47 U.S.C. § 230(f)(3). The key provision of Section 230 states that “[n]o provider or user of an interactive

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computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Id. § 230(c)(1). Section 230(e)(3) further provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Under Section 230, “[s]tate-law plaintiffs may hold liable the person who creates or develops unlawful content, but not the interactive computer service provider who merely enables that content to be posted online.” Nemet Chevrolet Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009). Even as long as decade ago, the Ninth Circuit noted a “consensus developing across other courts of appeal that § 230(c) provides broad immunity for publishing content provided primarily by third parties.” Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003). That consensus has since hardened, with each of the eight United States Courts of Appeal that has considered the question interpreting Section 230 as broadly insulating interactive service providers from liability for third-party content. See Johnson v. Arden, 614 F.3d 785, 791 (8th Cir. 2010) (“The majority of federal circuits have interpreted the CDA to establish broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”); Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) (“Courts have construed the immunity provisions in § 230 broadly in all cases arising from the publication of user-generated content”); Zeran

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v. America Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997) (“Section 230 … plainly immunizes computer service providers like AOL from liability for information that originates with third parties”); Green v. America Online, Inc., 318 F.3d 465, 471 (3d Cir. 2003) (“By its terms, § 230 provides immunity to AOL as a publisher or speaker of information originating from another information content provider”); Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F.3d 980, 984-985 (10th Cir. 2000) (§ 230 “creates a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third-party”); Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007) (“[W]e too find that Section 230 immunity should be broadly construed”); Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. craigslist, Inc., 519 F. 3d 666, 671 (7th Cir. 2008) (finding that “[a]n interactive computer service ‘causes’ postings only in the sense of providing a place where people can post” and such a role cannot give rise to liability given Section 230).3

Numerous district courts have likewise held that Section 230 broadly immunizes interactive services from liability for third-party content. See, e.g., Klayman v. Zuckerberg, 910 F.Supp.2d 314, 318 (D.D.C. 2012) (“By its plain terms, then, the CDA immunizes internet computer service providers from liability for the publication of information or speech originating from third parties.”); Courtney v. Vereb & Angie’s List, Inc., 2012 WL 2405313, at *4-6 (E.D. La., June 25, 2012); Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1197 (N.D. Cal. 2009); Murawski v. Pataki, 2007 WL 2781054, at *10-11 (S.D.N.Y. 2007); Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 851-852 (W.D. Tex. 2007); Parker v. Google, Inc., 422 F. Supp. 2d 492, 500-501 (E.D. Pa. 2006); Dimeo v. Max, 433 F. Supp. 2d 523, 530-531 (E.D. Pa.), aff’d, 2007 WL 217865 (3d Cir. 2006); Noah v. AOL 9

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This Court too has recognized the protection afforded by Section 230. In a case involving the interactive computer service TripAdvisor, this Court noted that, while the case generally concerned content provided by the service itself, “if the complaint or proposed amended complaint had alleged that TripAdvisor’s users’ statements are defamatory, TripAdvisor cannot be held liable for its users’ statements under the Communications Decency Act, 47 U.S.C. § 230(c)(1).” Seaton v. TripAdvisor LLC, 728 F.3d 592, 598 n.8 (6th Cir. 2013).4 Numerous state appellate and trial-level courts similarly have concluded that Section 230 broadly immunizes providers of interactive computer services from liability for third-party content. For example, the Court of Appeals of New York has explained that “we follow what may fairly be called the national consensus and read section 230 as generally immunizing Internet service providers from liability for third-party content wherever such liability depends on characterizing the provider as a ‘publisher or speaker’ of objectionable material.” Shiamili v. The Real Estate Group of New York, 952 N.E.2d 1011, 1017 (N.Y. 2011); see also Hill v. StubHub, 727 S.E.2d 550, 561 (N.C. Ct. App. 2012) (StubHub entitled to Time Warner Inc., 261 F. Supp. 2d 532, 538-540 (E.D. Va. 2003), aff’d, 2004 WL 602711 (4th Cir. Mar. 24, 2004); Blumenthal v. Drudge, 992 F. Supp. 44, 50-52 (D.D.C. 1998). District courts within the Sixth Circuit also have applied Section 230 to bar claims against interactive service providers. See, e.g., Eckert v. Microsoft Corp., 2007 WL 496692, at *3 (E.D. Mich. 2007); see also Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 824-825 (M.D. Tenn. 2013) (enjoining state statute because it likely was preempted by Section 230). 10
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immunity even if it “encouraged the posting of ‘market-based’ prices on its website or was cognizant of the risk that tickets sold on its website would be priced in excess of face value” in contravention of state anti-scalping laws); Barrett v. Rosenthal, 146 P.3d 510, 522-523 (Cal. 2006) (Section 230 “broadly shield[s] all providers from liability for ‘publishing’ information received from third parties”); Doe v. America Online, 783 So. 2d 1010, 1018 (Fla. 2001). Congress has twice ratified this substantial body of case law by enacting follow-on legislation extending the protections of Section 230 into new areas. See 47 U.S.C. § 941 (extending Section 230 protections to new class of entities); 28 U.S.C. § 4102(c)(1) (providing that U.S. courts “shall not recognize or enforce” foreign defamation judgments that are inconsistent with Section 230); see also H.R. Rep. No. 107-449, at 13 (2002) (“[t]he courts have correctly interpreted section 230(c)”); Barrett, 146 P.3d at 523 n.17 (statements in H.R. Rep. No. 107449 “reflect the Committee’s intent that the existing statutory construction … be maintained in a new legislative context”). II. THE DISTRICT COURT’S NARROW CONSTRUCTION OF SECTION 230 IS ERRONEOUS The district court incorrectly interpreted this established body of Section 230 jurisprudence as establishing a vague protection that vanishes whenever the service provider merely “encourage[s]” the content at issue. Jones v. Dirty World Entm’t Recordings, LLC, 840 F. Supp. 2d 1008, 1012 (E.D. Ky. 2012) (“Jones I”); Jones 11

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v. Dirty World Entm’t Recordings, LLC, 2013 WL 4068780, at *2 (E.D. Ky. Aug. 12, 2013) (“Jones II”). This unprecedented standard is inconsistent with the plain language of Section 230 and contrary to the case law. Indeed, the very case that the district court characterized as “[t]he principal precedent” on which it relied5 warned that “close cases … must be resolved in favor of immunity” to avoid “forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality of third parties.” Roommates.com, 521 F.3d at 1174. A. The District Court Applied the Wrong Standard

The text of Section 230 deprives a service provider of statutory protection only where it is “responsible, in whole or in part, for the creation or development” of the particular alleged unlawful content that is at issue—not where the provider merely “encourage[s]” content provided by a third party. 47 U.S.C. § 230(f)(3) (emphasis added). The district court’s standard would expand the meaning of “development” to the point of negating the very protection that Congress intended to erect. Virtually every website includes features that invite and encourage users to enter particular types of content. For example, online marketplaces generally include functions for a third-party seller to set a price for an item, to state whether the item is new or used, to categorize the nature or use of the item, and a variety of

5

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other information designed to help other users search for items in which they may be interested and to learn more about those items. Likewise, a site devoted to reviews of restaurants or other businesses might well have specific language explaining the value and importance readers place on “negative” reviews and soliciting users to submit details of their negative experiences with a business. Under the district court’s standard, however, a website could lose Section 230 immunity on the theory that such characteristics meant that the site “encouraged” the submission of particular third-party content. That is not a reasonable interpretation of the terms “creation” or “development.” Indeed, the en banc decision in Roommates.com specifically cautioned that “the broadest sense of the term ‘develop’ could include … just about any function performed by a website,” but that “to read the term so broadly would defeat the purposes of section 230 by swallowing up every bit of the immunity that the section otherwise provides.” Roommates.com, 521 F.3d at 1167. The standard conjured by the district court here would have exactly that effect. In addition, the trial court’s standard has no basis in Section 230 precedent. In Roommates.com, the en banc court adopted a far narrower standard for what constitutes “creation or development” of user content. It held that “development” refers “not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness.” 521 F.3d at 1167-1168 (emphasis

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added). The court explained that a web site does not “materially contribute” to the unlawfulness of third-party content where it merely provides “a framework that could be utilized for proper or improper purposes” by the user. Id. at 1169, 1172. Rather, Roommates.com held only that the website operator was not entitled to immunity with respect to allegedly unlawful content that it effectively required its users to submit. In that case, as a condition for using an online roommatefinding service, each user seeking to offer living space had to create a profile describing his/her desired roommate and, in doing so, was “require[d] … to disclose his sex, sexual orientation and whether he would bring children to a household” and to “describe his preferences in roommates with respect to the same three criteria.” 521 F.3d at 1161 (emphasis added). The site also designed its search functions to “steer” users to listings based on users’ answers to the discriminatory questions posed by the site. Id. at 1167. In those circumstances, the Ninth Circuit held that Roommates.com had “materially contributed” to the content at issue because it “force[d]” users to answer “discriminatory questions” allegedly in violation of housing discrimination laws. Id. at 1166-1167. In other words, that specific discriminatory content was the direct and necessary result of the site operator’s own discriminatory questions. Courts have consistently interpreted Roommates.com as recognizing “only a narrow exception” to Section 230’s broad grant of immunity, applicable only

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where the service provider materially contributed to the content that is alleged to be unlawful by requiring the user to provide that specific content. Goddard, 640 F. Supp. 2d at 1198. In Nemet Chevrolet, for example, the Fourth Circuit expressly distinguished Roommates.com on this ground, refusing to strip a website operator of immunity based on a claim that the operator had “structured its website and its business operations to develop” third-party complaints about businesses, even where the operator was alleged to have solicited and asked questions about the complaints and revised or redrafted user content. 591 F.3d at 257. Other courts have held, since Roommates.com, that a search engine provider retains its immunity where the provider offers a tool that suggests keywords to potential advertisers—even when those keywords allegedly contributed to fraud— because the tool “does nothing more than provide options that advertisers may adopt or reject at their discretion.” Goddard, 640 F. Supp. 2d at 1198; see also Jurin v. Google Inc., 695 F. Supp. 2d 1117, 1123 (E.D. Cal. 2010) (same); Doe v. MySpace, Inc., 629 F. Supp. 2d 663, 665 (E.D. Tex. 2009) (Roommates.com “not applicable” because “users of MySpace.com are not required to provide any additional information to their profiles” (emphasis added)); Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 701 (S.D.N.Y. 2009).6

Blumenthal v. Drudge, 992 F. Supp. 44, also illustrates how the district court’s “encouragement” standard is contrary to longstanding Section 230 precedent. There, the Internet service provider AOL had contracted with the 15

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The district court’s reliance on FTC v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009), was similarly misplaced. In that case, the website offered to provide users with detailed telephone records for any phone number and then paid “researchers” to obtain those records. Id. at 1199. The court held the website was not entitled to immunity because acquisition of such confidential telephone records is inevitably unlawful (e.g., because federal law generally prohibits telephone companies from disclosing such information). Id. at 1200. Once again, the site required the dissemination of content that was necessarily unlawful.7

author of an online gossip column, Matt Drudge, to carry the column on its online service; paid Drudge substantial royalties; promoted him as a “Runaway Gossip Success” and his column as a source for “gossip and rumor”; and reserved (but did not exercise) the right to edit Drudge’s content. Id. at 51. Notwithstanding these facts—which go well beyond those at issue here—the court found that AOL was not an “information content provider” of allegedly defamatory content in the column written by Drudge. The court held that AOL was immune under Section 230 because Congress had made a “policy choice” in Section 230 to “provid[e] immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others.” Id. at 52. The district court’s also erroneously relied on Johnson, 614 F.3d 785, and Chicago Lawyers’ Comm., 519 F. 3d 666. In those cases, the courts held that Section 230 immunized the service providers from liability. Both courts noted in support of those holdings that the providers had done nothing that could even be said to induce unlawful content. Johnson, 614 F.3d at 792; Chicago Lawyers’ Comm., 519 F.3d at 671-672. But neither court held that such inducement could deprive a service provider of immunity—indeed, given the absence of any facts suggesting such inducement, neither court was even faced with that question. 16
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B.

The Factors on Which the District Court Relied Do Not Establish a Basis for Losing Section 230 Immunity

Under the correct Section 230 standard, the factors on which the court below relied cannot deprive a service provider of the statute’s protections. The district court pointed to certain remarks or “taglines” made by the website operator in response to the third-party postings. Jones I, 840 F. Supp. 2d at 1012; Jones II, 2013 WL 4068780, at *3-4. To be sure, if the plaintiff had established that the taglines themselves were tortious, Section 230 would not bar imposition of liability on the website operator for those taglines, because they were not “provided by another information content provider.” The court below, however, did not hold that the taglines were tortious. Jones II, 2013 WL 4068780, at *4. Instead, the district court concluded that those remarks “effectively ratified and adopted the defamatory third-party post” and on that basis held defendants liable for that thirdparty post. Id. But the court below created this standard out of whole cloth. Another court recently rejected this same argument: Indeed, it would be contrary to the purpose of the CDA, which sought to encourage the ‘vibrant and competitive free market’ of ideas on the Internet,’ Nemet Chevrolet, 591 F.3d at 253 (quoting 47 U.S.C. § 230(b)(2)), by establishing immunity for internet publication of third-party content, to require a fact-based analysis of if and when a defendant ‘adopted’ particular statements and revoke immunity on that basis. Parisi v. Sinclair, 774 F.Supp.2d 310, 316 (D.D.C. 2011).

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The only relevant question under the statute is whether the website operator was responsible for the “creation or development” of the allegedly tortious content. See, e.g., Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003) (key issue is whether service provider “created or developed the particular information at issue”); Nemet, 591 F.3d at 260 (affirming dismissal where plaintiff failed to show defendant “was responsible for the creation or development of the allegedly defamatory content at issue ” (emphasis added)); Gentry v. eBay, Inc., 121 Cal. Rptr. 2d 703, 717 n.11 (“The critical issue is whether eBay acted as an information content provider with respect to the information that appellants claim is false or misleading.”). By definition, remarks that a website operator adds in response to a thirdparty post are made after that post has been created and developed and therefore cannot have played a role in that post’s creation or development. To the extent the court below was suggesting that the site operator’s own remarks could encourage future unlawful postings, as discussed above, such encouragement—even assuming it exists—is a far cry from the “creation or development” of any such postings. The same is true of the name of the site, which the court below also cited as a factor that encouraged submission of unlawful content. Jones I, 840 F. Supp. 2d at 1012; Jones II, 2013 WL 4068780, at *3. However distasteful the site at issue here may be, gossip posted on the site is not necessarily unlawful (e.g., it may be true),

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and, unlike the facts in Roommates.com, nothing about the site operator’s own remarks in any way required or forced users to post unlawful content. If a service provider were at risk of losing the protection of Section 230 based on speculation that the name of its site, some features of its service, or some content it originated could be interpreted to have indirectly encouraged unlawful content, service providers would, as the Ninth Circuit warned, “face death by ten thousand duckbites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality of third parties.” Roommates.com, 521 F.3d at 1174. The court below also pointed to several editorial considerations that it suggested should deprive a service provider of the protections of Section 230, noting in particular that the defendant selects which submissions will be posted, “reviews the postings but does not verify their accuracy,” and decides whether a posting should be removed in response to an objection. Jones I, 840 F. Supp. 2d at 1012. But, as discussed below, Congress intended Section 230 to encourage precisely these forms of self-regulation. If service providers were to face the threat of losing Section 230 immunity by reviewing third-party content and deciding whether to remove it when someone objects to it, the provider would have a perverse incentive simply to eschew all review and ignore all objections. It was exactly this incentive that Congress sought to eliminate by enacting Section 230. See infra pp. 24-26. Moreover, the case law is clear that service providers do not

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lose the protections of Section 230 for engaging in routine editorial functions such as selecting what third-party content to post or remove. As the Fourth Circuit explained, under Section 230 “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” Zeran, 129 F.3d at 330. The court in Batzel likewise held: Nor do [defendant’s] minor alterations of [an] e-mail prior to its posting or his choice to publish the e-mail (while rejecting other emails for inclusion in the listserv) rise to the level of ‘development.’ As we have seen, a central purpose of the Act was to protect from liability service providers and users who take some affirmative steps to edit the material posted. Also, the exclusion of ‘publisher’ liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message. 333 F.3d at 1031. III. THE PREVAILING INTERPRETATION OF SECTION 230 PROMOTES ITS PURPOSES AND HAS BEEN CRITICAL TO THE DEVELOPMENT AND GROWTH OF THE INTERNET. A. Section 230 Promotes Free Speech and Online Commerce

Congress enacted Section 230 both to protect free speech on the Internet and to foster the growth of online marketplaces and exchanges free from state laws and regulations that, if applied to online intermediaries, would threaten to cripple vibrant discourse and commerce on the Internet. Carafano, 339 F.3d at 1122 (Section 230 enacted “to promote the free exchange of information and ideas over

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the Internet”); Zeran, 129 F.3d at 330 (Congress enacted Section 230 to promote “freedom of speech in the new and burgeoning Internet medium” by eliminating the “threat [of] tort-based lawsuits” against interactive services for injury caused by “the communications of others”); Batzel, 333 F.3d at 1018 (Section 230 intended to “promote the development of e-commerce”). Congress expressly found that the Internet and interactive computer services offer “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity,” 47 U.S.C. § 230(a)(3), and that such services “have flourished, to the benefit of all Americans, with a minimum of government regulation.” Id. § 230(a)(4). Congress further stated that it is “the policy of the United States … to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” Id. § 230(b)(2) (emphasis added). As the Fourth Circuit explained in Zeran, The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum. 129 F.3d at 330. Courts have repeatedly recognized that Congress’s enacted policy declarations support a broad reading of Section 230(c)(1). The Ninth Circuit 21

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explained that “making interactive computer services … liable for the speech of third parties would severely restrict the information available on the Internet.” Batzel, 333 F.3d at 1027. Given the “staggering” volume of third-party content that they carry, and “[f]aced with potential liability for each message republished by their services,” see Zeran, 129 F.3d at 331, such services likely would be forced, absent Section 230’s protection, to restrict or abandon many of the features that enable the dissemination of third-party content. Moreover, to avoid risks of litigation and liability, service providers often would have little choice but to remove third-party content claimed by anyone to be tortious or unlawful, effectively creating a “heckler’s veto” of a kind that courts have routinely recognized is antithetical to free speech values. Thus, as the Fourth Circuit recognized, “[t]he specter of tort liability in an area of such prolific speech would have an obvious chilling effect.” Id.; see also Batzel, 333 F.3d at 1028 (Section 230 was passed “to prevent lawsuits from shutting down websites and other services on the Internet”). Under the protection of Section 230—and consistent with Congress’s intent—interactive computer services that allow users to speak, interact, and transact have experienced tremendous growth in the 17 years since the statute’s enactment. The Amici are now household names with hundreds of millions of users, and collectively they serve as platforms for billions of dollars in transactions

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among users annually and innumerable communications in the forms of postings, tweets, blogs, comments, and other third-party expression. Some or all of the Amici might have to change their business models or curtail their services in significant ways if the prevailing interpretation of Section 230 were narrowed.8 The district court’s “encouragement” standard, for example, would blur the line between content provided by third parties and content created or developed by the service provider itself, opening the door to burdensome litigation and possibly crushing liability based merely on factors such as a site’s name or features designed to facilitate third-party content submission. Even the threat of such litigation and liability would chill service provider offerings and steer them away from innovative or controversial subjects—the opposite of what Congress intended.

Indeed, several of the Amici have done just that when operating online services in countries that lack the equivalent of Section 230 protection. For instance, some Amici remove content from non-U.S. services based on allegations of defamation by businesses subject to critical reviews, even though Amici are not in a position to determine whether those reviews are truthful. This undoubtedly leads to the blocking of valuable speech. Additionally, removing liability protection could significantly curtail investment in interactive service providers. See, e.g., Booz & Co., The Impact of U.S. Internet Copyright Regulations on Early-Stage Investment 21 (2012) (finding, in the copyright context, that 81% of angel investors would prefer to invest under current U.S. liability rules with a weak economy than under a regime with increased liability even with a strong economy), available at http://www.booz.com/global/home/what-we-think/reports-whitepapers/article-display/impact-internet-copyright-regulations-early-2. 23

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B.

Section 230 Immunity Gives Service Providers Room To SelfRegulate

The court below erroneously suggested that a broad interpretation of Section 230 would undermine the statute’s purposes, apparently on a supposition that it would discourage service providers from blocking or removing offensive content. See Jones II, 2013 WL 4068780 at *2-3. But just the opposite is true. Congress specifically enacted Section 230 to address the perverse effects of applying preexisting liability regimes, such as the common law of defamation, to online intermediaries. Those effects were exemplified by a 1995 court ruling, Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995), which held that, under traditional common law doctrine, the provider of an electronic message board service was potentially liable for its user’s defamatory message specifically because it had engaged in voluntary self-policing of the thirdparty content available through its service. One purpose of Section 230 was to overturn this precedent, which created disincentives for online intermediaries to engage in self-regulation. S. Rep. No. 104-230, at 194 (1996) (“One of the specific purposes of [Section 230] is to overrule Stratton Oakmont v. Prodigy and any other similar decisions … .”); see also, e.g., Zeran, 129 F.3d at 331 (“Another important purpose of § 230 was to encourage service providers to self-regulate the dissemination of offensive material over their services. In this respect, § 230 responded to [Stratton Oakmont v. Prodigy].”). 24

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Congress concluded that service providers may voluntarily and constructively self-regulate so as to restrict the availability of objectionable thirdparty material in ways that are appropriately tailored to the nature, design, and user-base of their services. Congress sought to achieve this goal by “encourag[ing] service providers to self-regulate the dissemination of offensive material over their services.” Zeran, 129 F.3d at 331; Carafano 339 F.3d at 1122 (Congress enacted Section 230 “to encourage voluntary monitoring for offensive or obscene material”); 141 Cong. Rec. 22,046 (Section 230 was designed to give interactive service providers “a reasonable way to … help them self-regulate themselves without penalty of law”) (statement of Rep. Barton). Congress recognized that a legal regime in which liability may accrue when a service provider has notice of allegedly unlawful content but fails to act would perversely “reinforce[] service providers’ incentives to … abstain from selfregulation,” for fear of being held liable for anything a jury determines they should have uncovered in the course of their efforts to monitor their services. See Zeran, 129 F.3d at 333 (“Any efforts by a service provider to investigate and screen material posted on its service would only lead to notice of potentially defamatory material more frequently and thereby create a stronger basis for liability.”). By enacting Section 230, Congress freed service providers to adopt robust selfregulatory regimes, experiment with different approaches to self-regulation,

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implement novel technical solutions, and otherwise respond to the demands of the marketplace and the possibilities of technology without fear that by doing so they would expose themselves to liability. This is precisely what these Amici and many other service providers have done. For example, many service providers take steps such as • supplying links, e-mail addresses, flagging and “report abuse” buttons, and other mechanisms for users to report complaints about particular content;9 • specifying and enforcing “community guidelines,” terms of service, and other rules and standards for third-party content;10

9

See, e.g., Twitter, I’m reporting an abusive user (form for filing complaint about, among other things, threats, abuse, and posting of private information), available at https://support.twitter.com/forms/abusiveuser; LinkedIn, Complaints Regarding Content Posted on the LinkedIn Website (describing mechanisms for submitting complaints), available at http://www.linkedin.com/legal/copyrightpolicy#pri-2; Facebook, Report a Violation, available at https://www.facebook. com/help/263149623790594/; YouTube Reporting and Enforcement Center, available at http://www.youtube.com/yt/policyandsafety/ reporting.html.

See, e.g., Facebook Community Standards, available at https://www.face book.com/communitystandards; Google Terms of Service (“We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct.”), available at https://www. google.com/intl/en/policies/terms/; Microsoft Code of Conduct, available at http:// windows.microsoft.com/en-us/windows-live/code-of-conduct; The Twitter Rules, available at http://support.twitter.com/articles/18311-the-twitter-rules#; Tumblr Community Guidelines, available at http://www.tumblr.com/policy/en/community; LinkedIn User Agreement (containing list of “DOS and DON’Ts”), available at 26

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• employing technological means to detect and remove or block particular kinds of content, such as child pornography; and • monitoring message boards, chat rooms, and other areas with third-party content; responding to complaints; and removing third-party content for violations of law or the service’s rules or policies.11 Thus, the district court’s apparent supposition that a broad reading of the scope of Section 230(c)(1)’s protections would cause service providers to eschew selfpolicing of their services is demonstrably wrong. At the same time, the district court’s suggestion that Section 230 protects only “those who remove offensive content,” Jones II, 2013 WL 4068780 at *3, finds no support in the statutory language or case law.12 To the contrary, service providers have repeatedly been held immune under Section 230 even when they allegedly received notice of the offending content and failed to remove it. See, http://www.linkedin.com/ legal/user-agreement; LinkedIn Professional Community Guidelines, available at http://help.linkedin.com/app/answers/detail/a_id/34593. See, e.g., eBay, When eBay may remove or adjust Feedback (describing certain circumstances under which eBay will remove third-party), available at http://pages.ebay.com/help/policies/feedback-removal.html; eBay, How to Report inappropriate buying and selling, available at http://pages.ebay.com/help/buy/ report-trading.html#wont.
12 11

Section 230 contains a separate immunity provision that generally protects service providers from liability for actions “voluntarily” taken in good faith to remove unlawful or objectionable content. 47 U.S.C. § 230(c)(2) (emphasis added). But nothing in that immunity provision or elsewhere in Section 230 requires service providers to take such actions in order to retain the protection of section 230(c)(1). 27

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e.g., Zeran, 129 F.3d at 331-332; Roommates.com, 521 F.3d at 1169 n.24 (immunity extends to claims “based on a website operator’s passive acquiescence in the misconduct of its users”); Green, 318 F.3d at 471 (ISP not liable for failing to monitor, screen, or delete allegedly defamatory third-party content); Johnson, 614 F.3d at 791 (“The district court, following majority circuit precedent, held that § 230(c)(1) blocks civil liability when web hosts and other ISPs refrain from filtering or censoring the information that third parties created on their sites.”); Goddard v. Google, Inc., 2008 WL 5245490, at *3 (N.D. Cal. Dec. 17, 2008) (“[E]ven if a service provider knows that third parties are using such tools to create illegal content, the service provider’s failure to intervene is immunized.”). In sum, Congress created a regime that removed legal disincentives to selfregulation of objectionable content, while at the same time declining to impose government regulation imposing particular steps a service provider must take to remove third-party content. The prevailing interpretation of Section 230 implements Congress’s policy choice; the district court’s interpretation would undermine it.

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CONCLUSION Amici respectfully urge the Court to reject the district court’s unduly narrow interpretation of Section 230(c)(1) and to reaffirm that Section 230(c)(1) broadly protects interactive computer service providers from liability for unlawful content supplied by others.

Respectfully submitted,

/s/ Patrick J. Carome PATRICK J. CAROME SAMIR C. JAIN WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 (202) 663-6000 Attorneys for Amici AOL Inc., eBay Inc., Facebook, Inc., Google Inc., LinkedIn Corp., Microsoft Corp., Tumblr, Inc., Twitter, Inc., and Zynga Inc.

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CERTIFICATE OF COMPLIANCE I certify that the foregoing brief complies with the type-volume limitation provided in Federal Rule of Appellate Procedure 32(a)(7)(B). The foregoing brief uses Times New Roman (14-point) proportional type, and contains 6,924 words, exclusive of exempted portions.

/s/ Patrick J. Carome PATRICK J. CAROME

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CERTIFICATE OF SERVICE I certify that on November 19, 2013, I electronically filed the foregoing Brief for Amici Curiae AOL Inc., eBay Inc., Facebook, Inc., Google Inc., LinkedIn Corp., Microsoft Corp., Tumblr, Inc., Twitter, Inc., and Zynga Inc. with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit using the Court’s CM/ECF System. Counsel for all parties are registered CM/ECF users and will be served with the foregoing document by the Court’s CM/ECF system.

/s/ Samir C. Jain SAMIR C. JAIN

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Case No. 13-5946 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SARAH JONES, Plaintiff /Appellee, vs. DIRTY WORLD ENTERTAINMENT RECORDINGS,LLC, et al., Defendants/Appellants On Appeal from the United States District Court for the Eastern District of Kentucky Case No. 09-CV-219-WOB,District Court Judge William O. Bertelsman AMICUS CURIAE BRIEF BY ONLINE SERVICE PROVIDERS BRUCE E.H. JOHNSON JAlV~S C. GRANT ~1.1VIBIKA K. DORAN DAVIS WRIGHT TREMAINE LLP 1201 Third Avenue, Suite 2200 Seattle, Washington 98101 Tel: (206)622-3150 Fax: (206)757-7700 THOMAS R. BURKE DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California 94111 Tel: (415)276-6500 Fax: (415)276-6599 JOHN C. GREINER NICHOLAS J. ZIEPFEL GRAYDON HEAD & RITCHEYLLP 1900 Fifth Third Center 511 Walnut Street Cincinnati, OH 45202-3157 Tel: (513)629-2731 Fax: (513)651-3836 JAMES ROSENFELD DAMS WRIGHT TREMAINE LLP 1633 Broadway, 27th Floor New York, NY 10019 Tel: (212)489-8230 Fax: (212)489-8340

Attorneys for Amici Curiae Advance Publications, Inc., Amazon.com,Inc., Awo,Inc., Buzzfeed, Inc., Cable News Network, Inc., Curbed.com LLC, Gawker Media, LLC,Magazine Publishers of America, Inc., The McClatchy Company, The Reporters Committee for Freedom ofthe Press, TripAdvisor LLC,Yahoo! Inc., and Yelp Inc. 1

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CORPORATE DISCLOSURE STATEMENT Pursuant to Sixth Circuit Rule 26.1, Amici Advance Publications, Inc., Amazon.com, Inc., Awo,Inc., Buzzfeed, Inc., Cable News Network, Inc., Curbed.com LLC, Gawker Media,LLC, Magazine Publishers of America, Inc., The McClatchy Company, The Reporters Committee for Freedom ofthe Press, TripAdvisor LLC,Yahoo! Inc., and Yelp Inc. make the following disclosures:

Advance Publications, Inc.; Awo,Inc.; Buzzfeed,Inc.; Curbed.com LLC; Gawker Media,LLC; Magazine Publishers of America,Inc.; The Reporters Committee for Freedom of the Press; Yahoo! Inc.; and Yelp Inc. 1. 2. Is said party a subsidiary or affiliate of a publicly owned corporation? No. Is there a publicly owned corporation, not a party to the appeal, that has a

financial interest in the outcome? Not to the knowledge of said party.

Amazon.com,Inc. 1. Is said party a subsidiary or affiliate of a publicly owned corporation?

Amazon.com, Inc. is a publicly owned corporation. 2. Is there a publicly owned corporation, not a party to the appeal, that has a

financial interest in the outcome? Not to the knowledge of said party.

2

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The McClatchy Company Is said party a subsidiary or affiliate of a publicly owned corporation? The McClatchy Company is a publicly owned corporation. 2. Is there a publicly owned corporation, not a party to the appeal, that has a

financial interest in the outcome? Not to the knowledge of said party.

Cable News Network,Inc. 1. Is said party a subsidiary or affiliate of a publicly owned corporation? Yes.

Cable News Network, Inc. is a wholly owned subsidiary of Turner Broadcasting System, Inc., which is a wholly owned subsidiary of Time Warner Inc., a publicly traded corporation. 2. Is there a publicly owned corporation, not a party to the appeal, that has a

financial interest in the outcome? Not to the knowledge of said party.

TripAdvisor LLC Is said party a subsidiary or affiliate of a publicly owned corporation? Yes. TripAdvisor LLC is a subsidiary of TripAdvisor, Inc. TripAdvisor, Inc. is publicly traded. 2. Is there a publicly owned corporation, not a party to the appeal, that has a

financial interest in the outcome? Not to the knowledge of said party. Kj

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TABLE OF CONTENTS Page I. II. IIL INTEREST OF AMICI CURIAE ...................................................................1 AUTHORITY TO FILE..................................................................................1 INTRODUCTION AND SL~`vIlVIARY OF ARGLJIVMENT .............................1 ARGUMENT .................................................................................................. 4 A. Congress Intended Section 230 to Promote Free Speech on the Internet and Encourage Online Service Providers to Police Content.................................................................................................. 4 Section 230 Provides Broad Immunity to Online Service Providers for Claims Based on Third-Party Content............................................ 6 The District Court Mischaracterized Prior Cases to Interpret Section 230 Immunity More Restrictively Than Any Other Court......9 The District Court's Interpretation Threatens to Strip Online Service Providers of Section 230 Immunity Based on Common and Laudable Practices.......................................................................16 1. 2. 3. Exercising Traditional Editorial Functions............................. 16 Failing to Remove Allegedly Unlawful Content after Notice..17 Focus on Entire Website Rather than Specific Content........... 18 Website Name........................................................................... 21 Inconsistency with Common Law Defamation......................... 22 Implicitly Adopting Third-Party Content ................................. 23

IV.

B.

C.

D.

4.
S. 6. E.

The District Court's Unprecedented Interpretation of Section 230 Threatens Speech Across the Internet................................................ 24

i

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TABLE OF AUTHORITIES Pages) Cases Ascentive, LLC v. Opinion Corp., 842 F. Supp. 2d 450(E.D.N.Y. 2011) .........................................:...................... 22 Atlantic Recording Copp. v. Project Playlist, Inc., 603 F. Supp. 2d 690(S.D.N.Y. 2009)................................................................ 13 Batzel v. Smith, 333 F.3d 1018(9th Cir. 2003) .....................................................................passim Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980(10th Cir. 2000) ........................................................................ 4, 11 Ca~afano v. Met~osplash, Inc., .............................................................. 6, 8, 19, 23 339 F.3d 1119(9th Cir. 2003) Chicago Lawyers' Comm.for Civil Rights Under Law, 519 F.3d 666(7th Cir. 2008) .............................................................................. 10 Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) .......................................................................... 6, 23 Doe v. MySpace, Inc., 629 F. Supp. 2d 663(E.D. Tex. 2009)............................................................... 13 Doe v. SexSea~ch.com, 551 F.3d 412(6th Cir. 2008) ................................................................................ 8 Eckert v. Microsoft Copp., 2007 WL 496692(E.D. Mich. Feb. 13, 2007)..................................................... 9 Energy Automation Sys., Inc. v. Xcentr°ic Ventures, LLC, 2007 WL 1557202(M.D. Tenn. May 25, 2007).................................................. 9 Fair Housing Council ofSan Fernando Valley v. Roommates.com LLC, 521 F.3d 1157(9th Cir. 2008)(en banc ) .....................................................passim ii

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Federal TNade Commission v. Accusearch, 570 F.3d 1187 10th Cir. 2009

................................passim

Gentry v. Ebay, Inc., 99 Cal. App. 4th 816, 121 Cal. Rptr. 2d 703 ( 2002) .......................................... 19 Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929(D. Ariz. 2008) .................................................................. 22 Goddard v. Google, Inc., 640 F. Supp. 2d 1193(N.D. Cal. 2009)............................................................. 13 GW Equity LLC v. Xcentr~ic Ventures LLC, 2009 WL 62173 N.D. Tex. Jan. 9 2009

22

Hill v. StubHub, Inc., 727 S.E.2d 550(N.C. App. 2012)............................................................ 8, 15, 20 Johnson v. Aden, 614 F.3d 785 (8th Cir. 2010).......................................................................... 7, 10 Jones v. Dirty World Entertainment Recordings, L.L.C., 766 F. Supp. 2d 828(E.D. Ky. 2011)...................................................... 9, 17, 19 Jones v. Duty World Entertainment Recordings, L.L.C., 840 F. Supp. 2d 1108(E.D. Ky. 2012).......................................................passim Jones v. Dirty World Entertainment Recordings, L.L.C., 2013 WL 4068780(E.D. Ky. Aug. 12, 2013) .............................................passim Levitt v. Yelp!Inc., 2011 WL 5079526(N.D. Cal. Oct. 26,2011) .................................................... 26 M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041 (E.D. Mo. 2011) .............................................................. 17 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250(4th Cir. 2009)............................................................................ 6, 8 Parisi v. Sinclair', 774 F. Supp. 2d 310(D.D.G 2011)................................................................... 24 iii

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Reno v. American Civil Liberties Union, 521 U.S. 844(1997)....................................................................................... 2, 27

S.C. v. Duty World, LLC, 2012 WL 3335284(W.D. Mo. Mar. 12,2012)............................................ 19, 22
Seaton v. T~ipAdviso~, LLC,

728 F.3d 592(6th Cir. 2013)................................................................................ 8 Shiamili v. Real Estate Group ofNew York, Inc., 17 N.Y.3d 281,952 N.E.2d 1011 (N.Y. 2011).................................................. 15 Snyder v. Phelps, 131 S. Ct. 1207, 179 L. Ed. 2d 172(2011)........................................................ 21 Speiser v. Randall, 357 U.S. 513(1958)........................................................................................... 27 Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710(N.Y. Sup. Ct. May 24, 1995)................................................. 4 United States v. Playboy Ent. Group, Inc., 529 U.S. 803(2000)........................................................................................... 21
Universal Comm'n Sys., Inc. v. Lycos, Inc.,

478 F.3d 413(lst Cir. 2007)...................................................................... 7, 8, 17 Whitney Info. Network v. Xcentric Ventures, LLC, 2008 WL 450095(M.D. Fla. Feb. 15, 2008)............................................... 19, 22 Ze~an v. Am. Online, Inc., 129 F.3d 327(4th Cir.1997)........................................................................passim
Constitution and Statutes

U.S. Const., Amend. I.......................................................................................... 2, 21 47 U.S.C. § 230 ................................................................................................passim

iv

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Other Authorities S. Conf. Rep. No. 104-230(1996)............................................................................ 4 E-Co~RCE & INTENT LAw 37.05 L3~ LDS Lii]....................................................... 9

u

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I.

INTEREST OF AMICI CURIAE

Amici are websites, news organizations, technology companies, and search engines that host and disseminate millions of posts and other content authored by users every day.l As online service providers, they have a strong interest in preserving the protections of Section 230 ofthe Communications Decency Act "CDA"), 47 U.S.C. § 230, for themselves and their users, consistent with ( Congress's intent to promote the robust free flow ofinformation on the Internet.2 II. AUTHORITY TO FILE

Appellee has declined to consent to the filing ofthis brief. Amici have concurrently filed a motion for leave to file this brief. III. INTRODUCTION AND SUMMARY OF ARGUMENT

The Internet has effected one ofthe greatest expansions of free speech and communications in history. It is "a tool for bringing together the small contributions of millions of people and making them matter. "3 Today, more than 2.7 billion people use the Internet, submitting and viewing hundreds of millions of

1 Amore detailed description ofthe Amici and their interests in the issues raised by the underlying lawsuit is contained in E~ibit A to the concurrently filed motion for leave to file this brief. 2 Pursuant to Fed. R. App. P. 29(c)(5), no party's counsel authored this brief in whole or in part. No person other than Amici or their counsel contributed money that was intended to fund the preparation or submission ofthis brief. 3 Lev Grossman, You —Yes, You —Aye TIME's Person ofthe Year, TIlV~ MAGAZI~(Dec. 25, 2006).

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posts, comments, photos, videos and other content every day.4 As the Supreme Court put it, "the content on the Internet is as diverse as human thought." Reno v.
American Civil Liberties Union, 521 U.S. 844(1997).

This is no accident. In 1996, to promote the free flow ofinformation on the Internet, Congress resolved to protect websites and other online providers from state-law liability for their users' content. Section 230 ofthe Communications Decency Act embodies that command, prohibiting treating such a provider as the "publisher or speaker" ofthird-party content or holding it liable for taking steps to screen such material. 47 U.S.C. § 230. Grounded in core First Amendment standards, Section 230 offers strong protection for innovation and expansion of free speech on the Internet. Since its enactment, federal.and state courts have interpreted it to provide broad immunity to providers for claims stemming from user content. The district court departed from this well-established precedent, apparently because of its distaste for the defendants' website, TheDirty.com. The court found that the law does not supplant common law defamation rules, yet that is exactly

International Telecommunications Union, 2013 ICT Facts &Figures, http:/ /www.itu.int/en/ITU-D/Statistics/Documents/facts/ICTFactsFigures2013.pdf; Pew Research Center,Pew Internet and American Life Project, http://pewinternet.org/Reports/2011/Social-Networking-Sites.aspx (as of2011, 65% of online adults used social networking sites); DOMO,How Much Data Is Created Every Minute? http:/ /www.domo.com/blog/2012/06/how-much-data-iscreated-every-minute/ ?dkw=socf3.
4

2

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what Congress chose to do. The court suggested that a website can be liable just because it selects posts to publish, does not verify their accuracy, and fails to remove them upon notice. But these are all "publisher" functions within Section 230's scope. The court also found a website may be liable merely because of its name and tenor, but the case law prohibits holding a provider liable for "implicitly encouraging" content. Ultimately, the court concluded Section 230 "only provides] protection for site owners who allow postings by third parties without screening them and those who remove offensive content." 2013 WL 4068780, at *3(Aug. 12, 2013). But this is not what Section 230 says. This standard directly contravenes Congress's intent, and if it is upheld, providers will have the perverse incentive not to review third-party content at all, for fear of liability. Eight circuits have enforced these core Section 230 protections. This Court now has an opportunity to reinforce the same clear guidance about the law's broad immunity. At bottom, the district court's interpretation upends that guidance, imposing instead the nebulous view that if a judge or jury finds a website is somehow offensive and encourages users to submit content, the website provider loses immunity. This would threaten online service providers across the Internet and significantly chill online speech. Section 230 requires just the opposite.

3

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IV. A.

ARGUMENT

Congress Intended Section 230 to Promote Free Speech on the Internet and Encourage Online Service Providers to Police Content. In enacting Section 230, Congress had two express goals. First, it sought to

"encourage the unfettered and unregulated development of free speech on the Internet, and to promote the development of e-commerce." Batzel v. Smith, 333
F.3d 1018, 1027(9th Cir. 2003); see also Ben Ezra, Weinstein, & Co. v. Am.

Online Inc., 206 F.3d 980, 985 n.3 (10th Cir. 2000)(Section 230 is meant "to ( "Section 230 is intended promote freedom of speech"); 47 U.S.C. § 230(b)(2)(3) to "preserve the vibrant and competitive free market that presently exists for the -regulate the Internet."). Second, it hoped to "encourage service providers to self dissemination of offensive material over their services." Zer~an v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir.1997); see Batzel, 333 F.3d at 1028 (citing 47 U.S.C. § 230(b)(4), and 141 Cong. Rec. H8469-70). Congress made these goals manifest in overruling Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710(N.Y. Sup. Ct. May 24, 1995), a case holding online service Prodigy liable for defamatory comments posted by a user to one of its bulletin boards. See S. Conf. Rep. No. 104-230(1996)(expressing intent to overrule Stratton Oakmont and "any other similar decisions"). Because Prodigy actively screened and edited bulletin board messages to prevent offensive content, the court applied common law publisher (rather than distributor) principles,

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meaning that Prodigy could be liable for posts even if it did not know or have any reason to know they were defamatory. Id. at *5. By overruling this result, Congress eliminated the "grim choice" such a rule would present to online service providers, i.e., those that voluntarily filter content would be responsible for all posts, while "providers that bury their heads in the sand and ignore problematic posts would escape liability altogether." Fair Housing Council ofSan Fernando Valley v. Roommates.com LLC,521 F.3d 1157, 1163(9th Cir. 2008)(en banc); see also Batzel, 333 F.3d at 1029 ( "If efforts to review and omit third-party defamatory, obscene or inappropriate material make a computer service provider or user liable for posted speech,,then website operators and Internet service providers are likely to abandon efforts to eliminate such material from their site[s]." (citation omitted)). Section 230 recognizes the Internet's practical realities. "Interactive computer services have millions of users [and the] amount ofinformation communicated ... is ... staggering." Zeran, 129 F.3d at 331. It is simply impossible for online service providers to screen all oftheir user content. Id. "Section 230 therefore sought to prevent lawsuits from shutting down websites and other services on the Internet," Batzel, 333 F.3d at 1028, and it did so by "bar[ring] state-law plaintiffs from holding interactive computer service providers legally responsible for information created and developed by third parties," Nemet 5

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ChevNOlet, Ltd. v. Consume~affai~s.com, Inc., 591 F.3d 250, 254(4th Cir. 2009). "The specter of tort liability in an area of such prolific speech would have an obvious chilling effect," because "faced with potential liability for each message republished ..., providers might choose to severely restrict the number and type of messages posted." Zeran, 129 F.3d at 331. Section 230 also reflects the reality that some material posted on the Internet might be offensive or harmful. But Congress made a choice that, while injured parties may sue the users who created the content, they may not sue the interactive computer service that enabled users to publish the content. See, e.g., Doe v. MySpace, Inc., 528 F.3d 413,419(5th Cir. 2008)(finding social networking site immune for claims premised on sexual assault resulting from online meeting); Ca~afano v. Met~osplash, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003)(matchmaking website immune from claims stemming from fake profile that led to threats made against the plaintiff, whom a user had impersonated); Ze~an, 129 F.3d at 331(AOL immune for publishing false advertisements created by users and failing to remove them promptly even though plaintiff received death threats as a result). B. Section 230 Provides Broad Immunity to Online Service Providers for Claims Based on Third-Party Content. Section 230 states: "No 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." 47 U.S.C. § 230(c)(1). Courts have interpreted this

D

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language to create athree-part test, under which a defendant is immune i£ (1)it is a "provider ... of an interactive computer service,"(2)the plaintiff's claim treats it "as the publisher or speaker" of information, and (3)that information is "provided by another information content provider." See Batzel, 333 F.3d at 1037; Universal
Comm'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413,418(1st Cir. 2007).

There is no dispute in this case that the defendants satisfied the first two parts ofthis test. Instead, the plaintiff argued, and the court agreed, that the defendants were themselves "information content provider[s]" for the allegedly defamatory posts. Section 230 defines "information content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. § 2300(3). Consistent with Congress's intent,"[t]he majority of federal circuits have interpreted the CDA to establish broad federal immunity to any cause of action that would make service providers liable for information originating with athird-party user ofthe service." Johnson v. Arden,614 F.3d 785, 791 (8th Cir. 2010)(internal quotation omitted); Lycos, 478 F.3d at 418 ( "courts that have addressed these issues have generally interpreted Section 230 immunity broadly ...."). Perhaps more important here, in treating Section 230 immunity as "quite robust," courts have "adopt[ed] a relatively expansive definition of `interactive computer service' 7

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and a relatively restrictive definition of `information content provider."' Carafano, 339 F.3d at 1123 ( "§ 230(c) provides broad immunity for publishing content provided primarily by third parties").5 To date, some 300 reported decisions have construed Section 230, and "[a]11 but a handful ... find that the website is entitled to immunity from liability." Hill v. StubHub, Inc., 727 S.E.2d 550, 558(N.C. App. 2012). Eight circuit courts have found online service providers exempt from liability under Section 230 in all but two cases (discussed below). The Sixth Circuit has stated that Section 230 protects websites from liability for user content, Seaton v. TripAdvisor, LLC,728 F.3d 592, 599(6th Cir. 2013), but has not yet applied the law,see Doe v. SexSearch.com, 551 F.3d 412, 415 (6th Cir. 2008)(declining to "reach the question of whether the [CDA]provides [defendant] with immunity from suit"). However, district courts in this Circuit have recognized the "[n]ear-unanimous case law" enforcing Section 230 immunity for online service providers against suits seeking to hold them liable for third-party content. Eckert v. Microsoft Copp., 2007 WL 496692, at *3(E.D.

5 Moreover, Section 230 creates "an immunityfrom suit rather than a mere defense to liability and it is effectively lost if a case is erroneously permitted to go to trial." Nemet Chevrolet, 591 F.3d at 254 (internal quotations omitted; emphasis in original); Roommates.com, 521 F.3d at 1 175 (Section 230 "must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles."). Thus, courts should apply Section 230 "at the earliest possible stage ofthe case ...." Nemet Chev~^olet, 591 F.3d at 255.

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Mich. Feb. 13, 2007); see also Energy Automation Sys., Inc. v. Xcent~ic Ventures, LLC,2007 WL 1557202, at *12 n.6(M.D. Tenn. May 25, 2007). C. The District Court Mischaracterized Prior Cases to Interpret Section 230 Immunity More Restrictively Than Any Other Court. The district court departed significantly from this clear precedent, finding instead that the defendants did not have immunity under Section 230 for allegedly defamatory user posts because they helped "develop" content.6 In so finding, the court "appl[ied] a standard for evaluating development that [is] broader than any circuit court has ever recognized." 3 E-ColvIlViERCB &INTERNET LAw [ii] ( 37.05[3 ] [D] "Jones ... likely would have been decided differently by other courts.... ") The district court asserted that its ruling "represents the weight of authority," 2013 WL 4068780, at *1, but that is simply not true. For example, it cited cases from the Seventh and Eighth Circuits that upheld Section 230 immunity, but focused on their dicta.~ More significantly, the court misconstrued a statement in

6 The court declined to apply Section 230 immunity four times. See Jones v. Dirty

World Entertainment Recordings, L.L.C., 766 F. Supp. 2d 828, 836(E.D. Ky. 2011)(denying motion to dismiss); 840 F. Supp. 2d 1008(2012)(denying motion for summary judgment); Case No. 2:09-cv-00219-WOB-CJS, Dkt. 188(Apr. 18, 2013)(denying second summary judgment motion); and 2013 WL 4068780(Aug. 12, 2013)(post-trial supplemental opinion denying defendants' motion for judgment as a matter oflaw under Fed. R. Civ. P. 50). 'See, e.g., 2013 WL 4068780, at *1 (discussing Chicago Lawyers' Comm.fog Civil Rights Under Law, 519 F.3d 666,671 (7th Cir. 2008), in which the Seventh E

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the Tenth Circuit's opinion in Federal Trade Commission v. Accusea~ch, 570 F.3d 1187, 1199(10th Cir. 2009), that "to be `responsible' for the development of offensive content, one must be more than a neutral conduit for that content." The district court read into this quote a r~equi~ement that an online service provider's conduct be "neutral" to retain Section 230 immunity, stating that a provider can avail itself of Section 230 "only if[its] conduct was neutral with respect to the offensiveness ofthe content." 2013 WL 4068780, at *2(emphasis added)(quoting Accusea~ch, 570 F.3d at 1199). Until now, no court has ever held that a website must be a purely neutral conduit for third-party content and loses Section 230 immunity if it selects, reviews, edits or fails to remove offensive content. This is precisely the result Congress sought to avoid. Section 230 protects and encourages online service providers to review, edit, and block content. See Zeran, 129 F.3d at 330 ( "lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions —such as deciding whether to publish, withdraw, postpone or alter content —are barred"); see also Ben Ezra, 206 F.3d at 986; Batzel, 333 F.3d at

Circuit held Craigslist immune for allegedly discriminatory housing ads, but focusing on the court's comment that "[n]othing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination"); id. at *2(discussing Johnson v. Aden,614 F.3d at 792, and acknowledging that the Eighth Circuit "upheld ... immunity," but focusing on its comment that "[t]he record contains no evidence that [the Internet service provider] designed its website to be a portal for defamatory" content). 10

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1031. See also 47 U.S.C. § 230(c)(1)(prohibiting treatment of online service provider as "publisher" of information provided by a third party). To find otherwise, the district court relied almost entirely on misapplications ofthe Ninth and Tenth Circuits' decisions in Roommates.com, 521 F.3d 1157, and Accusea~ch, 570 F.3d 1187,see 840 F. Supp. 2d at 1010-11; 2013 WI,4068780, at *1-2, the only circuit court cases declining to apply Section 230 immunity on the basis that online service providers participated in developing unlawful content. But the facts and holdings ofthese cases do not support the court's conclusion. Roommates.com concerned a website designed to match prospective roommates. One portion ofthe site required users to answer questions by making selections from drop-down menus, including queries about their gender, sexual orientation, and whether they would bring children into the household. Roommates.com, 521 F.3d at 1160. The site also required users to specify whether they would prefer to live with someone based on the same criteria and created profile pages searchable by the criteria. Id. Two housing groups sued Roommates.com, arguing it did online what a real estate agent could not lawfully do in person, i.e., facilitate the rental of housing based on discriminatory factors. Roommates.com argued that Section 230 provided immunity from these claims, but the Ninth Circuit disagreed because, it found, as to certain of its features, the site was "responsible ... for the creation or development" ofthe 11

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allegedly unlawful content. See 47 U.S.C. § 2300(3). The court held that "a website helps to develop unlawful content, and thus falls within the exception to Section 230, ifit contributes materially to the alleged illegality ofthe content." Id. at 1168 (emphasis added). Roommates.com did this, the court found, because it authored questions designed to elicit discriminatory preferences and required users to answer them. Id. at 1166. "By Yequiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of prepopulated answers," the court wrote,"Roommate becomes much more than a passive transmitter ofinformation provided by others; it becomes the developer, at least in part, ofthat information." Id.(emphasis added). As the Ninth Circuit emphasized,the crux of its decision was the site's
Yequirement that users submit allegedly unlawful content to its site.$ Courts

applying Roommates.com have interpreted it the same way—as "carv[ing] out only a narrow exception" that "turned entirely on the website's decision to force subscribers to divulge protective characteristics and discriminatory preferences as a
See, e.g., 521 F.3d at 1167 ( "Roommate designed its search system ... based on the preferences and personal characteristics that Roommate itself forces subscribers to disclose."); id. at 1170, n.26 ( "it is Roommate that forces users to express a preference and Roommate that forces users to disclose the information that can form the basis of discrimination by others."); id. at 1172 ( "Roommate does not merely provide a framework that could be utilized for proper or improper purposes; rather, Roommate's work in developing the discriminatory questions, discriminatory answers and discriminatory search mechanism is directly related to the alleged illegality ofthe site.").

12

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condition of using its services." Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1201-02(N.D. Cal. 2009); see also Atlantic Recording Corp. v. Project Playlist,
Inc., 603 F. Supp. 2d 690, 701 (S.D.N.Y. 2009)(finding Roommates.com "readily

distinguishable" because it "was based solely on the fact that the content on the website that was discriminatory was supplied by Roommates.com itself'); Doe v.
MySpace, Inc., 629 F. Supp. 2d 663, 665(E.D. Tex. 2009)(distinguishing Roommates.com because "[t]he Ninth Circuit repeatedly stated ... that the

Roommates.com website required its users to provide certain information as a condition of its use ...."(emphasis added)). At the same time, the Roommates.com court emphasized that courts must not read the term "develop" so broadly as to sap Section 230 of its meaning: "It's true that the broadest sense ofthe term `develop' could include ... just about any function performed by a website. But to read the term so broadly would defeat the purposes of section 230 by swallowing up every bit ofthe immunity that the section otherwise provides." Id. at 1167. Even more relevant here, the Ninth Circuit found Roommates.com was
immune from claims stemming from a different part of its website, a section for

users to provide "Additional Comments." Roommates.com was "not responsible, in whole or in part, for the development ofthis content," because the website could not review every post, making it "precisely the kind of situation for which section 13

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230 was designed to provide immunity." Id. The plaintiffs contended the site encouraged subscribers to make discriminatory statements in the "Additional Comments" field because it required the selection of discriminatory preferences in its registration process. Id. at 1174. The Ninth Circuit rejected this argument and emphasized that theories of"implicit encouragement" would gut Section 230: [T]here will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged — or at least tacitly assented — to the illegality ofthird parties. Where it is very clear that the website directly participates in developing the alleged illegality — as it is clear here with respect to Roommate's questions, answers and the resulting profile pages — immunity will be lost. But in cases ofenhancement by implication or development by inference —such as with respect to the "Additional Comments" here — section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles. Id. at 1174-75 (emphasis added). Contrary to the Ninth Circuit's holding in Roommates.com,the district court decided that a website can be liable as a content developer merely because it implicitly encourages users to post offensive content. In Accusea~ch,the defendant operated a website that offered to sell individuals' private telephone records, allegedly in violation or unlawful circumvention ofthe Telecommunications Act. 570 F.3d at 1192. Accusearch invoked Section 230, arguing that it obtained the records from third-party "researchers" it hired, but the Tenth Circuit rejected this argument. Id. at 1191. 14

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Alluding to Roommates.com, it found that "[b]y paying its researchers to acquire telephone records, knowing the confidentiality ofthe records was protected by law, it contributed mightily to the unlawful conduct." Id. at 1200. At the heart ofthe court's decision was its finding that "[a]cquisition ofthis information would almost inevitably require someone to violate the [law]." Id. at 1192. See also Hill, 727 S.E.2d at 561 (reading Roommates.com and Accusea~ch to require that an online provider "effectively control the content posted by ... third parties or take other actions which essentially ensure the creation of unlawful material" to lose Section 230 immunity); Shiamili v. Real Estate Group ofNew York, Inc., 17 N.Y.3d 281, 290,952 N.E.2d loll (N.Y. 2011)(refusing to interpret Accusea~ch to create an exception to immunity where defendants "created and ran a Web site which implicitly encouraged users to post negative comments"). The district court here ignored the holding of Accusea~ch and mistakenly latched on to one statement:"We therefore conclude that a service provider is `responsible' for the development of offensive content only if it in some way specifically encourages the development of what is offensive about the content." 840 F. Supp. 2d at 1011 (quoting Accusearch, 570 F.3d at 1 199). The court interpreted this to mean that a website is beyond Section 230 protections ifthe site is offensive and encourages users to post content. That is not what... Accusea~ch

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held, it is not what Section 230 states, and no court has ever adopted such a sweeping exception to Section 230 immunity. D. The District Court's Interpretation Threatens to Strip Online Service Providers of Section 230 Immunity Based on Common and Laudable Practices. In its opinions, the district court pointed to several factors that purportedly established the defendants "encouraged" offensive content and thus were not entitled to Section 230 immunity. In its order denying defendants' motion for judgment as a matter oflaw, it summarized: This Court holds by reason ofthe very name ofthe site, the manner in which it is managed, and the personal comments of defendant Ritchie, the defendants have specifically encouraged development of what is offensive about the content ofthe site. 840 F. Supp. 2d at 1012. This ill-defined "encouragement" test is based on factors that cannot defeat Section 230 immunity and would undermine its very purpose. 1.
Exercising Traditional Editorial Functions.

The district court concluded that defendants are content providers based on "the manner in which [the website] was managed," explaining: Ritchie acts as editor ofthe site and selects a small percentage of submissions to be posted. He adds a "tagline." ... He reviews the postings but does not verify their accuracy. ... If someone objects to a posting, he decides if it should be removed. 840 F. Supp. 2d at 1012. But, as discussed above, Congress expressly intended Section 230 to preserve and promote online service providers' rights to exercise these traditional 16

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editorial functions. See supra Section IV.C. In selecting, reviewing, editing, and deciding whether to include content, websites act as publishers and expressly have immunity under Section 230 when doing so. Section 230, by its terms, precludes treating online service providers as a "publisher or speaker" ofthird-party content. 47 U.S.C. § 230(c)(1)(emphasis added); see Ze~an, 129 F.3d at 330. 2. Failing to Remove Allegedly Unlawful Content after Notice.

The district court also repeatedly noted that the plaintiff complained about posts but defendants did not remove them. See 840 F. Supp. 2d at 1009 ( "After initially receiving a response stating that the web site would remove the post, "), id. at 1010 "Again plaintiff was told that the post would not be removed. ( plaintiff emailed the web site requesting that the posts be removed, but her requests were ignored. "); see also 766 F. Supp. 2d at 830-31. To the extent the district court viewed the failure to remove posts as a basis for denying Section 230 immunity, it again erred. As the First Circuit stated, "[i]t is, by now, well established that notice ofthe unlawful nature ofthe information provided is not enough to make it the service provider's own speech." Lycos, 478 F.3d at 420;see also Ze~an,l29 F.3d at 333; M.A. v. Village Voice Media ( "[E]ven if a service Holdings, LLC,809 F. Supp. 2d 1041, 1051 (E.D. Mo. 2011), provider knows that third parties are posting illegal content, the service provider's failure to intervene is immunized."(internal quotation omitted)).

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Notice-based liability also runs directly counter to the purposes of Section 230. Ifthe law requires providers either to remove unlawful content or risk liability, notice of potentially unlawful content would require "a legal judgment ... and an on-the-spot editorial decision whether to risk liability by allowing the continued publication ofthat information," giving providers a "natural incentive simply to remove messages upon notification, whether the contents were [unlawful] or not." Zeran, 129 F.3d at 333.9 3.
Focus on EntiYe Website Rather than Specific Content.

The district court also consistently focused on its view that the defendants created, developed, or materially contributed to developing the content of TheDirty.com website as a whole, rather than the specific posts the plaintiff challenged. See, e.g., 840 F. Supp. 2d at 1011( "The principal content of `the dirty.com' web site is not only offensive but tortious."); id. at 1012 ( "[T]he defendants ... `specifically encourage development of what is offensive about the content' of `the dirty.com' web site."); 2013 WL 4068780, at *3 ( "[D]efendants here received postings on their website which would be actionable even by a public figure, i.e., that they were knowingly false or in reckless disregard for the truth.").

district court's opinions put online providers in a Catch 22. If a provider reviews and blocks user content, it can be the "developer" ofthat content. But if it fails to take down content after someone complains, that too makes it a "developer" outside Section 230 protections.

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This approach contradicts established law holding that online service providers can be liable only for directly participating in creating, requiring, or developing the specific content that is unlawful. For example, in S.C. v. Dirty World, LLC,2012 WL 3335284(W.D. Mo. Mar. 12, 2012), another federal district court dismissed defamation claims against TheDirty.com under Section 230, "distance[d] itself' from the Jones court's "narrow interpretation of CDA immunity," and held that the plaintiff could not challenge the website as a whole "because the CDA focuses on the specific post at issue." Id. at *4. It found: "As a matter oflaw, and even iftrue, merely encouraging defamatory posts is not sufficient to defeat CDA immunity." Id. (citations omitted). See also Whitney Info. Network v. Xcentr~ic Ventures, LLC,2008 WL 450095, at *12(M.D. Fla. Feb. 15, 2008) ( "The issue ... is whether Defendants are responsible, in whole or in part, for the creation or development ofthe particular postings relating to [Plaintiff) that are the subject ofthis lawsuit."(emphasis added)); Ca~afano, 339 F.3d at 1125 (noting the key issue is whether the online service provider "created or developed the particular information at issue"); Gentry v. Ebay, Inc., 99 Cal. App. 4th 816, 833, n.l 1, 121 Cal. Rptr. 2d 703(2002) ( "The critical issue is whether eBay acted as an information content provider with respect to the information that appellants claim is false or misleading. ")

[L~

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Likewise, in Hill v. Stubhub, 727 S.E.2d at 550, a trial court held that the ticket exchange website Stubhub was not entitled to Section 230 immunity because it found the website as a whole promoted ticket scalping. But the appellate court reversed, concluding that the "`entire website' approach was fatally flawed." Indeed, both cases the district court principally relied upon — Roommates.com and Accusearch —make plain that online service providers lose Section 230 protections only if they directly create or develop the specific content alleged to be unlawful. See Roommates.com, 521 F.3d at 1174(immunity is lost where "the website directly participates in developing the alleged illegality"); Accusea~ch, 570 F.3d at 1199(provider is responsible for user content "only if it ... specifically encourages ") the development of what is offensive about the content In this case, as the district court noted, the "plaintiff ultimately declined to pursue [the] tagline [added by defendant Ritchie, stating "Why are all high school "] as an independently actionable statement ...." 2013 teachers freaks in the sack? WL 4068780, at *4. Rather than focus on whether the content Ritchie admittedly created was defamatory (or protected opinion or rhetoric), the court mistakenly analyzed whether defendants' website as a whole was "offensive." This entirely subjective approach not only contradicts the law, it puts all online providers at risk for allowing or encouraging provocative, controversial, or negative content, subject to the vagaries of whether a judge or jury will deem the 20

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site or some of its content offensive. Yet, as the long history ofthe First Amendment teaches,"speech cannot be restricted simply because it is upsetting or arouses contempt." Snyder v. Phelps, 131 S. Ct. 1207, 1219, 179 L. Ed. 2d 172 (2011). Quite the opposite, important principles are born from speech that some may consider "shabby, offensive, or even ugly." United States v. Playboy Ent.

Group, Inc., 529 U.S. 803, 826(2000). 4. Website Name.

The district court concluded that "the name ofthe site in and of itself [TheDirty.com] encourages the posting only of `dirt,' that is material which is potentially defamatory or an invasion ofthe subject's privacy." 840 F. Supp. 2d at 1012; see also 2013 WL 4068780, at *3 ( "the evidence conclusively demonstrates that these postings and others like them .were invited and encouraged by the defendants by using the name `Dirty.com"'). But courts have repeatedly rejected claims against websites whose names might allegedly invite negative content, such as PissedConsumer.com, RipoffReport.com, Badbusinessbureau.com, and even TheDirty.com. In S.C. v. Duty World, LLC,2012 WL 3335284,the court rejected this same argument with respect to TheDirty.com because "the CDA focuses on the specific content at issue and not the name of a website." Id. See also Ascentive, LLC v.

Opinion Copp., 842 F. Supp. 2d 450,475-76(E.D.N.Y. 2011)
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(PissedConsumer.com was not liable for user review, even though it invited others to submit and prominently displayed negative reviews, which is "not unlike the targeted solicitation of editorial material engaged in by a narrow genre of publishers"); GW Equity LLC v. Xcentric Ventures LLC,2009 WL 62173(N.D. Tex. Jan. 9, 2009)(granting summary judgment to ripoffreport.com and badbusinessbureau.com for claims premised on user reviews, even though sites required users to select category for posts, including one for "corrupt companies"); Global Royalties, Ltd. v. Xcent~ic Ventures, LLC,544 F. Supp. 2d 929(D. Ariz. 2008)(same for ripoffreport.com); Whitney Information Network, Inc., 2008 WL 450095 (same). 5. Inconsistency with Common Law Defamation.

The district court opined that permitting defendants to invoke Section 230 immunity would "allow it to be used to subvert the law of defamation which has existed at common law for centuries, as well as the laws protecting the right of privacy ...." 2013 WL 4068780, at *3. The court clearly was influenced by common law principles that make it libelous to "impute unchastity to a woman," or state that a woman is "sexually promiscuous." 840 F. Supp. 2d at 1011. But Congress intentionally abrogated the common law in Section 230. At common law, publishers could be held liable for republication of defamatory statements, whether or not they knew they were defamatory. Congress recognized

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this rule was unworkable for the vast amounts of user content on the Internet and would destroy the robust flow of information and innovation online. It made a policy choice to provide immunity for entities that host third-party content, and it is not for the district court, this Court, or any other court to substitute a different choice. See Doe v. MySpace, Inc., 528 F.3d at 419; Ca~afano, 339 F.3d at 1123. See also supra Section IV.A. 6. Implicitly Adopting Thud-Party Content.

Finally, the district court concluded that defendants were not entitled to Section 230 immunity because they "ratified and adopted" the content the plaintiff challenged. 2013 WL 4068780, at *4 ( "[T]he salient point about Ritchie's tagline is not that it was defamatory itself and thus outside CDA immunity, but rather that it effectively ratified and adopted the third-party post. "); see also 840 F. Supp. 2d at 1012(asserting that "a jury could certainly interpret" Ritchie's tagline,"Why are all high school teachers freaks in the sack?" "as adopting the preceding allegedly defamatory comments concerning [plaintiff's] sexual activity"). The district court's decision to preclude Section 230 immunity based on its views that defendants "implicitly adopted] an offensive posting" and thereby "effectively ratified and adopted" the post, 2013 WL 4068780, at *2(emphasis added), dangerously restricts the scope and availability of Section 230 immunity and creates an ambiguous and unworkable standard. Any website or online

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platform that hosts user content related to speech that someone might find objectionable — whether political commentary, consumer reviews, celebrity gossip, or countless other topics —would risk liability on the theory that it has "encouraged" unlawful content. See Parisi v. Sinclair, 774 F. Supp. 2d 310, 316 ( "it would be contrary to the purpose ofthe CDA ... to require a (D.D.C. 2011) fact-based analysis of if and when a defendant `adopted' particular statements and revoke immunity on that basis"). Websites allowing give-and-take about usersubmitted views and comments are "[t]he prototypical services] qualifying for [Section 230] statutory immunity ...." Accusea~ch, 570 F.3d at 1195. And, as the Ninth Circuit held in Roommates.com, courts should reject theories of development "by implication or ... inference," or that a website "tacitly assented" to content, because otherwise "we cut the heart out of section 230." 521 F.3d at 1174. E. The District Court's Unprecedented Interpretation of Section 230 Threatens Speech Across the Internet.

Circuit courts have carefully delineated the boundaries of Section 230 immunity consistent with Congress's intent, recognizing that in limited circumstances, online service providers may "develop" actionable content ifthey require users to submit it or retain third parties to create it. This Court now has the opportunity to consider the issue, and it likewise should interpret Section 230 consistent with its aims and established case law.

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Ifthe district court's unprecedented interpretation of Section 230 is accepted, the predictability that Section 230 now provides will be lost. No provider will know whether someone might subjectively determine its service is "offensive" or implicitly "encourages" offensive user content. The effects of such uncertainly would be far-ranging, as user content is a central feature of countless online services, including ones operated by Amici. Online providers rely on the protections of Section 230 to manage their services and provide vibrant forums for speech and commerce. The risks ofthe district court's decisions are perhaps as varied as the breadth ofthird content itself, but Amici offer some examples.
-party

First, if online providers are subject to liability for "encouraging" content by exercising editorial discretion and deciding to delete some posts but not others,
every provider that reviews and edits user content is at risk of losing immunity.

But websites across the Internet do just that. For example,the review website yelp.com (operated by Amicus Yelp Inc.) has received more than 47 million reviews about local businesses, government services, and other establishments from its users, and uses automated software to decide which ofthese reviews to recommend to the public in an effort to weed out reviews that maybe fake, overly offensive, or otherwise unhelpful. See Levitt v. Yelp!Inc., 2011 WL 5079526 (N.D. Cal. Oct. 26, 2011)(finding Yelp immune for these acts because exposure to liability could cause it to "resist filtering out false/unreliable reviews ... or to 25

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immediately remove all negative reviews about which businesses complained"). Amicus TripAdvisor LLC displays millions of user comments about hotels and travel services, and Amicus Amazon.com provides millions of customer reviews about books and other products. These sites, like countless others, reserve rights to remove, screen, and edit user-generated content, and to exercise the editorial discretion to remove some posts while allowing others to remain posted. Under the district court's interpretation, such efforts could contribute to liability, rather than protect against it. If this is the rule, online service providers are better off not reviewing, editing, or blocking content — a result that would be exactly contrary to Section 230's intent to encourage self -policing. Additionally, if websites lose Section 230 immunity based on a decision that either the site or some of its content is "offensive," online providers understandably will fear even coming close to this line.10 For example, Amicus Gawker Media LLC operates a website called "Defamer" (www.defamer.gawker.com), which posts content about celebrities. The website reddit.com provides items posted by users, ranked according to votes by other

falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding — inherent in all litigation —will create the danger that the legitimate utterance will be penalized," for "[t]he man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider ofthe unlawful zone." Speiser v. Randall, 357 U.S. 513, 526(1958).

to As the Supreme Court has recognized,"where particular speech

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users and organized by various categories, including for items that are "controversial." And again, many websites display reviews of businesses or professionals, including Amici Amazon.com, TripAdvisor, Awo,and Yelp. Anytime online service providers invite input that maybe controversial or critical, someone may consider something offensive. But providers are protected by Section 230 and they should be, because open and free speech on the Internet is what Congress meant to foster. If websites are subject to liability for failing to remove third-party content whenever someone objects, they will be subject to the "heckler's veto," giving anyone who complains unfettered power to censor speech. See Reno v. Am. Civil
Liberties Union, 521 U.S. 844, 880(1997). For example, Avvo.com hosts user

reviews of attorneys(www.avvo.com)and would risk liability if it did not remove client comments and reviews whenever a disgruntled attorney did not like them. The same would be true for Amazon.com if an author objected to reviews of her work, or TripAdvisor.com if a hotel disliked reviews from its guests. Under the district court's interpretation, any website that receives a complaint about thirdparty content would have little choice but to remove it, and the candid exchange of information would suffer as a result. Finally, if online service providers "adopt" or "ratify" user content merely by responding to posts or adding comments that are not actionable, that could
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dissuade websites from interacting with users altogether. For example, news websites that solicit citizen journalism about public events, crime tips, or users' experiences (such as Amicus CNN's ireport.com), often encourage conversations between users and editors about developing news events. Similarly, Amicus Gawker believes that interaction among submitters and editors is integral to finding and publishing accurate information. The district court's opinions offer no clear guidance about when an online service provider's own input has "adopted" or "ratified" arguably offensive content, necessarily causing them to be more reticent about providing any feedback or comments, regardless ofthe value of doing so. It is not Amici's place in this case to condone or condemn defendants' website or conduct. Certainly, an online service provider may lose Section 230 immunity if it creates or directly participates in authoring unlawful content. But the lines should be clear, as online service providers across the Internet need to understand and rely on the protections of Section 230 that Congress intended. This Court should be careful not to destroy the law's broad immunity and defeat its very purposes by creating theories of"implicit" encouragement or adoption, as the district court found.

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Respectfully submitted this 19th day of November,2013 s /John C. G~eine~ BRUCE E.H. JOHNSON JAMES C. GRANT AMBIKA K. DORAN Co-counselfog amici DAVIS WRIGHT TREMAINE LLP 1241 Third Avenue, Suite 2200 Seattle, Washington 98101 Tel: (206)622-3150 Fax: (206)757-7700 THOMAS R. BURKE Co-counselfog amid DAMS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California 94111 Tel: (415)276-6500 Fax: (415)276-6599 JOHN C. GREINER(0005551) NICHOLAS J. ZIEPFEL(0086584) Co-counselfor amici GRAYDON HEAD & RITCHEY LLP

1900 Fifth Third Center 511 Walnut Street Cincinnati, OH 45202-3157 Tel: (513)629-2731 Fax: (513)651-3836 JAMES ROSENFELD
Co-counselfog amid DAMS WRIGHT TREMAINE LLP 1633 Broadway, 27th Floor New York, NY 10019 Tel: (212)489-8230 Fax: (212)489-8340

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation ofFed. R. App. P. 29(d)(7) and 32(a)(7)(B)(i) because it contains 6,849 words of text as calculated by the word-processing program used to prepare it, excluding the parts ofthe brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and 6 Cir. R. 32(b)(1). This brief complies with the typeface requirement of Fed. R. App. P. 32(a)(5) and the type-style requirements ofFed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2011 in 14-point Times New Roman font. s/John C. Greiner John C. Greiner(0005551)

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served on all counsel of record, this 19th day of November, 2013, by means ofthe Court's electronic filing system. s /John C. G~eine~ John C. Greiner(0005551)

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__________________________________________________________________ No. 13-5946 __________________________________________________________________ United States Court of Appeals for the Sixth Circuit DIRTY WORLD ENTERTAINMENT, et al. Defendants-Appellants v. SARAH JONES Plaintiff-Appellee _________________________________________________________________ On Appeal from the United States District Court for the Eastern District of Kentucky __________________________________________________________________ BRIEF OF AMICUS CURIAE OPINION CORP. SUPPORTING APPELLANTS AND URGING REVERSAL Marc J. Randazza RANDAZZA LEGAL GROUP 3625 S. Town Center Drive, Suite 150 Las Vegas, Nevada 89135 (702) 420-2001 Attorney for Amicus Curiae November 19, 2013

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations and Financial Interest
Sixth Circuit Case Number: 13-5946 Name of counsel: Marc J Randazza Pursuant to 6th Cir. R. 26.1, Opinion Corp. makes the following disclosure: 1. No Case Name: Dirty World v. Jones

Name of Party

Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:

2. No

Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:

CERTIFICATE OF SERVICE

November 19, 2013 I certify that on _____________________________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/ Marc J Randazza

This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs, im m ediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form .

6CA-1 8/08

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Table of Contents INTEREST OF THE AMICUS CURIAE ..................................................................1 STATEMENT OF SOURCE OF AUTHORITY TO FILE BRIEF..........................1 SUMMARY OF ARGUMENT.................................................................................1 ARGUMENT ............................................................................................................5 I. II. III. IV. SECTION 230 EXPRESSES A CONGRESSIONAL INTENT TO PROVIDE BROAD IMMUNITY FOR WEBSITE OPERATORS. ...........5 COURTS CONSTRUE SECTION 230 IMMUNITY BROADLY TO EFFECTUATE ITS SPEECH-PROTECTIVE PURPOSE. ........................6 THE DISTRICT COURT’S “ENCOURAGEMENT” STANDARD CONTRAVENES SECTION 230’S LANGUAGE AND PURPOSE. .....10 NON-DEFAMATORY RESPONSES ARE NOT PART OF DEFAMATORY STATEMENTS AND DO NOT EFFECT IMMUNITY. ....................................................................................................................12 THERE IS NO EXCEPTION TO IMMUNITY ANALOGOUS TO CONTRIBUTORY INFRINGEMENT UNDER COPYRIGHT LAW.....13 APPELLANTS ARE ENTITLED TO SECTION 230 IMMUNITY BECAUSE THEY DID NOT ACTIVELY PARTICIPATE IN CREATING OR DEVELOPING THE DEFAMATORY POSTS. ...........14

V. VI.

CONCLUSION .......................................................................................................15

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Table of Authorities Cases Almeida v. Amazon.com, 456 F.3d 1316 (11th Cir. 2006) ...................................6, 7 Batzel v. Smith, 333 F. 3d 1018 (9th Cir. 2003) ........................................................6 Blumenthal v. Drudge, 992 F. Supp. 44, (D. D.C. 1998) ..........................................6 Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed 2d 1263 (1980) ..............11 Chi. Lawyers’ Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) ...............................................................................................13 Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) ……………………………………………………………………………..8, 9, 15 Fed. Trade Comm’n v. Accusearch, Inc., 570 F.3d 1187 (10th Cir. 2009)...............9 First Am. Title Co. v. Devaugh, 480 F.3d 438 (6th Cir. 2007)................................11 Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929 (D. Az. 2008).................................................................................................................9, 10 Green v. America Online, Inc., 318 F.3d 465 (3d Cir. 2003)....................................7 Johnson v. Arden, 614 F.3d 785 (8th Cir. 2010) ...................................................6, 7 Nemet Chevorlet, Ltd. v. Consumeraffairs.com, 591 F.3d 250, 254 (4th Cir. 2009) ............................................................................................................................7, 8 S.C. v. Dirty World, LLC, 2012 U.S. Dist. LEXIS 118297 (W.D. Mo., March 12, 2012).....................................................................................................................10 Shiamili v. Real Estate Group of N.Y., Inc., 17 N.Y. 3d 281 (2011).................12, 13 Universal Comm. Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007)..................7 Weinstein & Co. v. America Online, Inc., 206 F. 3d 980 (10th Cir. 2000) ...............7 Zeran v. Am. Online, Inc., 129 F.3d 327 (1997)..............................................5, 7, 10

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Statutes 47 U.S.C. § 230 ............................................................................................... passim

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INTEREST OF THE AMICUS CURIAE Amicus Curiae Opinion Corp. operates a website entitled “pissedconsumer.com.” Pissedconsumer.com is an online forum where consumers discuss negative experiences with products and services to warn other consumers. Opinion Corp. operates under the majority interpretation of the Communications Decency Act, 47 U.S.C. Section 230 (“Section 230”), which protects it from liability from claims based on posts originating from third parties. Here, the District Court incorrectly refused to apply Section 230 immunity and permitted Appellee to pursue defamation claims against Appellants based on thirdparty postings on Appellants’ website that were not modified by Appellants. Thus, Opinion Corp. respectfully submits this Amicus Curiae Brief because if this court affirms the District Court, Opinion Corp. (and many similarly-situated businesses) may suddenly be subject to numerous claims based on third-party posts that would be frivolous under current law. Opinion Corp. has Appellant’s consent to file. STATEMENT OF SOURCE OF AUTHORITY TO FILE BRIEF Pursuant to Federal Rule of Appellate Procedure 29(b), Opinion Corp. has concurrently filed a motion for leave for permission to file this Brief. SUMMARY OF ARGUMENT Recognizing that the internet provides “unique opportunities for cultural development, and myriad avenues for intellectual property . . . ,” Congress enacted 1!

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Section 230, which immunizes website operators and other interactive service providers from causes of action or liability based on content originating with third parties. The immunity provided by Section 230 is unique because, unlike other media providers, an interactive service provider cannot be found to have published illegal material on its website that it did not “create,” “author,” or “develop.” In conformity with the Congressional policy reflected in Section 230, an overwhelming majority of courts interpret Section 230 immunity to bar claims based on any information originating with a third party and not substantially altered by the interactive service provider. Under this near consensus rule, immunity is not forfeited unless the interactive service provider actively participates in the creation or development of the specific illegal content posted by the third party. No Circuit Court has ever held that a website operator can forfeit immunity under Section 230 by using a certain name for its site, opening a forum on a specific subject, or posting after-the fact and non-defamatory responses. In this case, the District Court ignored and/or misapplied this standard by holding that Section 230 immunity is lost where a name or subject of a website generally “encourages” defamatory material. In this regard, the District Court decision is the furthest outlier decision on this matter, and is clearly inconsistent with virtually all other precedent on the issue, and is completely inconsistent with the Congressional intent enshrined in Section 230. 2!

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Appellants Dirty World, LLC Hooman Karamian a/k/a Nik Richie (“Richie”) (collectively, “Appellants”) operate a website known as “thedirty.com” where visitors may post information on any subject. (R. 76, Order on Motion for Summary Judgment, Page ID # 2, R. 64-2, Richie Affidavit, Page ID # 3.) In 2009, a visitor to thedirty.com posted a message stating that Appellee, a teacher and Cincinnati Ben-Gals cheerleader, had “slept with every” Bengal player. (R. 76, Order on Motion for Summary Judgment, Page ID #’s 2-3.) A second post was made on thedirty.com, which implied that Appellee had sexually transmitted diseases. (R. 76, Order on Motion for Summary Judgment, Page ID #3.) Appellants did not create or alter the posts about Appellee, and all of the material in the posts originated with a third party or third parties. (R. 64-2, Richie Affidavit, Page ID # 6.) However, Richie did post a response to this post, which stated, “Why are all high school teachers freaks in the sack? – nik.” (R. 76, Order on Motion for Summary Judgment, Page ID # 3.) Appellee sued Appellants for defamation based on the third-party posts. (R. 22, Second Amended Complaint.) Appellee initially argued that Richie’s “freaks in the sack comment” was actionable. This comment could theoretically, result in liability – as it was at least authored by the defendant, but this claim was withdrawn. (R. 177, Motion for Summary Judgment, Page ID # 3, 16.) 3!

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The District Court twice denied motions by Appellants asserting Section 230 immunity, holding that immunity was forfeited because Appellants “encouraged” and “ratified” the defamatory posts “by reason of the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie . . . .” 1 (R. 64-1, 76, Page ID #10, 177, 210, Page ID #’s 10-11 Motions for Summary Judgment and Orders thereon.) The District Court’s holding contravenes the plain language of Section 230, which forbids website operators from being treated as a “publisher or speaker” of content originating from third parties. Congress simply did not provide an exception for merely generally encouraging illegal (as well as legal) content. In addition, the District Court’s “encouragement” standard transforms Section 230 analysis into a content-based analysis of a website’s name and subject. This approach is contrary to Section 230’s speech-protective purposes and will chill website operators from using open forums on controversial subjects. Similarly, the District Court’s “adoption” exception for non-defamatory responses to third-party posts also violates Section 230. The statutory language simply does not allow an exception to immunity for after-the-fact responses that cannot logically be considered part of an already completed post by a third party.
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The two motions were different because the first motion was filed prior to Appellee withdrawing any claim based on Richie’s “freaks in the sack” comment. (R. 177, 210 at Page ID # 11, Orders on Motion for Summary Judgment.)
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The District Court’s reliance on Seventh Circuit dicta analogizing contributory copyright infringement to “encouraging defamation” is also misplaced. Unlike defamation claims, copyright claims are exempt from Section 230 and protect affirmative rights. By contrast, Section 230 is a statutory immunity that encourages the broadest possible prohibition on claims. Because the District Court misapplied Section 230, its Orders denying Summary Judgment should be reversed. ARGUMENT I. SECTION 230 EXPRESSES A CONGRESSIONAL INTENT TO PROVIDE BROAD IMMUNITY FOR WEBSITE OPERATORS. In enacting Section 230, Congress expressed a clear intent to protect the free flow of information on the internet by “preserv[ing] the vibrant and competitive free market that presently exists for the Internet . . . .” 47 U.S.C. § 230(b)(3). Section 230 achieves this goal by carving out a sphere of immunity from suit for providers of interactive computer services in connection with content on their websites created by others. Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (1997). Specifically, 47 U.S.C. Section 230(c)(1) provides: No 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.

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An “information content provider” is defined by Section 230(f)(3) as “any person that is responsible, in whole or in part, for the creation or development of information provider through the Internet or any other interactive computer service.” Section 230(e)(3) further provides that “[n]o cause of action may brought and no liability imposed under any State or local law” that is inconsistent with Section 230. 47 U.S.C. § 230(c)(1) and (e)(3). Read together, these provisions bar plaintiffs from bringing defamation suits against interactive computer service providers based on information that third parties create, develop and post on the provider’s website. Johnson v. Arden, 614 F.3d 785, 791 (8th Cir. 2010) (quoting, Almeida v. Amazon.com, 456 F.3d 1316, 1321 (11th Cir. 2006)). This immunity reflects a unique policy whereby Congress “‘decided not to treat interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing obscene or defamatory material written or prepared by others.’” Batzel v. Smith, 333 F. 3d 1018, 1026 (9th Cir. 2003) (quoting Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D. D.C. 1998)). II. COURTS CONSTRUE SECTION 230 IMMUNITY BROADLY TO EFFECTUATE ITS SPEECH-PROTECTIVE PURPOSE. “The majority of federal circuits have interpreted [§ 230] to establish broad federal immunity to any cause of action that would make service providers liable

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for information originating with a third party user of the service.” See e.g., Almeida v. Amazon.com, 456 F.3d 1316, 1321 (11th Cir. 2006) (Section 230 immunity applied to right to publicity claim); see also Zeran, supra, 129 F. 3d at 329, 334, 335 (immunity applied to third party defamatory material); Ben Ezra, Weinstein & Co. v. America Online, Inc., 206 F. 3d 980, 984-985 (10th Cir. 2000) (immunity applied where information originated with a third party); Green v. America Online, Inc., 318 F.3d 465, 468, 471 (3d Cir. 2003) (immunity applied where provider declined to take action against alleged hacker); Universal Comm. Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 420 (1st Cir. 2007) (immunity applied to website that allegedly made it easier to post allegedly illegal material); Johnson v. Arden, supra, 614 F.3d at 792 (immunity applied to third party defamatory statements). The courts’ broad interpretation of Section 230 immunity is consistent with Congress’ recognition of the chilling effect that “the specter of tort liability would otherwise pose to interactive computer service providers given the prolific nature of speech on the Internet.” Nemet Chevorlet, Ltd. v. Consumeraffairs.com, 591 F.3d 250, 254 (4th Cir. 2009). Applying these principles, courts nearly uniformly hold that Section 230 immunity is applicable unless the provider is an active participant in the specific post that is alleged to be illegal. For example, in Nemet, an automobile dealership alleged that the website consumeraffairs.com “developed” allegedly fraudulent 7!

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posts about it by soliciting negative comments from users about businesses, then contacting them to encourage participation in class action litigation. 591 F.3d at 256. The court held that the legal activity of soliciting participation in class action lawsuits did not destroy Section 230 immunity because the website did not actually contribute to the illegal nature of the posts. Id. at 258. The court in Nemet distinguished the Ninth Circuit case of Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008), on which the District Court relies. In Roommates, the court held that Section 230 immunity was lost where an internet roommate matching service actively participated in potentially illegal posts by providing a questionnaire to participants that asked discriminatory questions, then requiring answers as a condition of posting the users’ classified ads. Id. at 1166. In short – the users were corralled into specific responses, which were themselves discriminatory. This is a narrow holding, which has logically defied expansion. Significantly, the court expressly limited its holding to situations where the website “contributes materially to the alleged illegality” of the third party’s post. Id. at 1168. This is because the term “development,” as used by Section 230, refers “not merely to augmenting the content generally, but . . . materially contributing to its alleged unlawfulness.” Id. at 1167-68. Thus, under Roommates, a website loses Section immunity only if it “directly participates in developing the alleged illegality . . .” and not simply by 8!

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“encourage[ing]” visitors “to provide something in response to a prompt. . . .” Id. at 1174, 1175 (italics in original). The court also cautioned that “close cases . . . must be resolved in favor of immunity . . .” to prevent claims that a website operator merely “promoted or encouraged” illegal posts. Id. The District’s Court’s reliance on Fed. Trade Comm’n v. Accusearch, Inc., 570 F.3d 1187, 1198 (10th Cir. 2009), is also misplaced. In Accusearch, the defendant’s website solicited and purchased legally protected confidential telephone records and sold them. 570 F.3d at 1191-92. The Tenth Circuit held that Section 230 immunity was inapplicable because by paying for the illegally obtained information, the defendant “contribut[ed] mightily” to the illegal publication. Id. at 1200. Notably, the court distinguished the defendant’s ecommerce site from message boards, which are the “prototypical service qualifying for [Section 230] immunity.” Id. at 1195. Further, the court confirmed that a website operator develops illegal content “only if it somehow specifically encourages development of what is offensive about the content.” (italics added.) Applying the majority approach, several District Courts have upheld immunity in cases similar to the instant case. In Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929, 930 (D. Az. 2008), the plaintiff alleged that a third party posted defamatory information about him on a website called ripoffreport.com. The court applied Section 230 immunity. The court reasoned 9!

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that calling a website “Ripoff Report” encourages defamatory content, which may be ethically wrong, but that unless Section 230 is amended, immunity must apply where the material is “unequivocally provided by another party.” Id. at 933. In S.C. v. Dirty World, LLC, 2012 U.S. Dist. LEXIS 118297 ** 3 (W.D. Mo., March 12, 2012), the plaintiff sued Appellants in this case, alleging they were liable for an alleged defamatory third-party post on the dirty.com that referred to her as “slut.” The court held that Section 230 plainly applied because the post was “unilaterally drafted and submitted by a third party.” Id. at **1. III. THE DISTRICT COURT’S “ENCOURAGEMENT” STANDARD CONTRAVENES SECTION 230’S LANGUAGE AND PURPOSE. By expressly forbidding any service provider from being treated “as the publisher or speaker” of any content “provided” by someone else, the statute could not be clearer in precluding liability for information originating with a third party. 47 U.S.C. § 230(c)(1); Zeran, 129 F.3d at 332. Thus, the District Court has essentially re-written the statute by holding that immunity is lost by mere “encouragement” of defamatory material. The District Court’s expansion of Section 230 also conflicts with the wellrecognized canon statutory construction known as expressio unius est exclusio alterius, which provides that “the mention of one thing” in a statute “implies the exclusion of another.” See First Am. Title Co. v. Devaugh, 480 F.3d 438, 453 (6th

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Cir. 2007) (applying canon of expression unius est exclusion alterius). Section 230(f)(3) provides an exclusive list of activities sufficient to render a website operator an “information content provider,” which include only the “creation” or “development” in “whole or in part” of the defamatory content. Thus, mere general “encouragement” of potentially defamatory content is necessarily excluded from Section 230’s limited definition of “information content provider.” The District Court also provides no guidance regarding what criteria should be applied to determine if a website name or subject “encourages” defamatory posts. If a website title as generic as “thedirty.com” is sufficient to “encourage” defamation, then the list of names that could potentially “encourage” defamatory content is as infinite. Further, nothing in Section 230 permits courts to grant or deny immunity based on the content of the website. Thus, the District Court’s approach to immunity risks placing courts in the constitutionally repugnant position of applying content-based legal rules. See Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed 2d 1263 (1980) (laws may not “accord preferential treatment to the expression of views on one particular subject . . . .”) The natural chilling effect of a name/subject based standard for immunity will be especially difficult for Amicus Curiae here and others who provide forums for consumer complaints. If subject to after-the-fact determination as to which names or subjects forfeit immunity, consumer complaint forums will suddenly be 11!

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at the mercy of litigation brought by companies seeking to silence all criticism. This is the precise result Congress sought to avoid in enacting Section 230. The more prudent rule is the bright-line majority rule, which holds that a website operator remains immune from liability for defamatory content posted on its website by third parties unless it is shown that the website operator actively participated in the “creation” or “development” of the specific defamatory post. IV. NON-DEFAMATORY RESPONSES ARE NOT PART OF DEFAMATORY STATEMENTS AND DO NOT EFFECT IMMUNITY. In Shiamili v. Real Estate Group of N.Y., Inc., 17 N.Y. 3d 281, 285 (2011), a third-party user posted a defamatory comment about the plaintiff’s business on the defendant’s website. The defendant reposted the comments and accompanied it with a distasteful, but non-defamatory, illustration of the plaintiff. Id. In applying Section 230 immunity, the New York Court of Appeals reasoned that the nondefamatory illustration did not “develop” or “materially contribute” to the alleged illegality of the third-party content. Id. at 292-293. The court’s holding in Shiamili is consistent with Section 230, which does not provide an exception for after-the-fact statements that contain no defamatory material. To the contrary, one becomes an information content provider only through the “creation” or “development” of the defamatory content. Naturally, one cannot “create” or “develop” a complete statement that has already been posted by

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someone else. Thus, as set forth in Shiamili, after-the-fact posts by website operators cannot be held to constitute active participation in the illegal activity. V. THERE IS NO EXCEPTION TO IMMUNITY ANALOGOUS TO CONTRIBUTORY INFRINGEMENT UNDER COPYRIGHT LAW. The District Court’s opinion also erroneously relies upon (and attempts to expand upon) Chi. Lawyers’ Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008). In Chicago Lawyers, the court held that Section 230 precluded the plaintiffs from holding craigslist.org liable as a publisher of the allegedly discriminatory third party housing ads. Id. at 671. In dicta, the court noted that “information content providers” could be liable for contributory copyright infringement if their system is designed to help people steal music or other material in copyright. Id. Chicago Lawyers is an outlier in terms of its narrow construction of Section 230 immunity. Further, the Seventh Circuit’s analogy to contributory copyright infringement collapses upon an examination of Section 230’s statutory language. Section 230(e)(2) provides that Section 230 shall not “be construed to limit or expand any law pertaining to intellectual property.” By excluding intellectual property claims -- whether based on direct or contributory infringement -Congress clearly expressed a policy favoring copyright rights over Section 230 immunity. By contrast, Congress specifically provided that where a provider is not

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“responsible” for the creation of the third party content “no liability may be imposed” for claims based on state law. By the same token, there is no exclusion for merely “contributing” to, rather than “creating” or “developing” content that might violate state law. Thus, in defamation cases, it is irrelevant that a website operator does not enjoy Section 230 immunity for contributory copyright infringement because, unlike defamation, a website never enjoys Section 230 immunity from any type of liability for copyright infringement. In addition, the Copyright Act grants affirmative rights to pursue claims to enforce rights held by authors. Thus, it makes sense to broadly interpret the rights of copyright holders against alleged infringers, including imposing liability for indirect or contributory infringements. Conversely, because Section 230 provides protection from liability by expressly excluding vicarious liability, it makes sense to broadly interpret the protection to provide immunity unless the website operator is directly involved in the creation or development of the illegal content. VI. APPELLANTS ARE ENTITLED TO SECTION 230 IMMUNITY BECAUSE THEY DID NOT ACTIVELY PARTICIPATE IN CREATING OR DEVELOPING THE DEFAMATORY POSTS. It was critical to the District Court’s ruling below that Appellants named their site “thedirty.com” and encourages posts on salacious topics. However, this evidence demonstrates only that Appellants were generally encouraging the discussion of provocative information – be it true or false. There is no evidence 14!

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that Appellants specifically requested information about Appellee, let alone that it specifically requested false information. It was undisputed below that Appellants did not create or edit the defamatory posts. Appellants simply “encourag[ed] visitors to provide something in response to a prompt” and did not “directly participate” in what is illegal about the posts, which is that the false accusations against Appellee. See Roommates, 521 F.3d at 1174, 1175. Accordingly, Appellee failed to demonstrate that Appellants were responsible for the “creation” or “development” of the posts. The fact that Richie posted non-defamatory responses to the defamatory third party statements does not alter this result. This is because what is defamatory about the posts has already been fully “created” and “developed.” Thus, the responses are irrelevant to Appellants Section 230 immunity. CONCLUSION This court should reverse the District Court because it misconstrued Section 230 in holding that Appellants were not immune from claims based on defamatory statements created and posted by third parties on their website. /s/ Marc J. Randazza Marc J. Randazza RANDAZZA LEGAL GROUP 3625 S. Town Center Drive, Suite 150 Las Vegas, Nevada 89135 (702) 420-2001 Attorney for Amicus Curiae Dated: November 19, 2013
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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Federal Rules of Appellate Procedure 29(d) and 32 (a)(7)(B) because it consists of 3,400 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5)(A) because it has been prepared in a proportionally space typeface using Microsoft Word 2011 in 14-point Times New Roman font.

/s/ Marc J. Randazza______________ Marc J. Randazza RANDAZZA LEGAL GROUP 3625 S. Town Center Drive, Suite 150 Las Vegas, Nevada 89135 (702) 420-2001 Attorney for Amicus Curiae Dated: November 19, 2013

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Case No. 13-5946 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SARAH JONES Plaintiff-Appellee v. DIRTY-WORLD ENTERTAINMENT RECORDINGS, LLC, dba THEDIRTY.COM, HOOMAN KARAMIAN aka NIK RICHIE aka CORBIN GRIMES, DIRTY WORLD, LLC dba THEDIRTY.COM, AND DIRTY WORLD ENTERTAINMENT, LLC dba THEDIRTY.COM Defendants-Appellants On Appeal from the United States District Court For the Eastern District of Kentucky at Covington Originating Case No. 2:09-cv-00219-WOB BRIEF OF AMICUS CURIAE AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES OF KENTUCKY, ELECTRONIC FRONTIER FOUNDATION, CENTER FOR DEMOCRACY & TECHNOLOGY, DIGITAL MEDIA LAW PROJECT, PUBLIC PARTICIPATION PROJECT, WENDY SELTZER, AND ADAM HOLLAND Junis L. Baldon Mark A. Flores Brandon W. Gearhart FROST BROWN TODD LLC 400 West Market Street, 32nd Floor Louisville, KY 40202 PH: (502) 589-5400 ACLU of Kentucky Cooperating Attorneys Lee Rowland AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 William E. Sharp* ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 Matthew Zimmerman ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Additional counsel on signature page *Lead Counsel of Record

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT CASE NO. 13-5946 SARAH JONES v. DIRTY WORLD ENTERTAINMENT RECORDINGS, LLC DIRTY WORLD, LLC NIK LAMAS-RICHIE DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST In accordance with 6th Cir. R. 26.1, Amici makes the following disclosures: 1. Are said parties subsidiaries or affiliates of a publicly owned corporation? No. 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No. s/ Junis L. Baldon Junis L. Baldon Counsel for Amicus Curiae, American Civil Liberties Union of Kentucky Date: 11/19/13 APPELLANT

APPELLEES

(i)

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Table of Contents INTRODUCTION ..................................................................................................... 1 FACTUAL AND PROCEDURAL BACKGROUND .............................................. 3 INTERESTS OF AMICI............................................................................................ 4 ARGUMENT ............................................................................................................. 7 A. B. C. Section 230 Broadly Immunizes Content Providers Against Liability for Information Created by Others ......................................... 7 A Broad Application of Section 230 Immunity Is Consistent With Congressional Intent ..................................................................... 9 The District Court Erred In Refusing to Extend Section 230 Immunity to Appellants ....................................................................... 13 1. 2. 3. 4. D. The District Court Misapplied Relevant Case Law in Determining that Appellants Developed Unlawful Material .... 14 The District Court’s Application of an “Encouragement Test” Was an Error of Law ....................................................... 18 The District Court’s Application of a “Neutrality Test” Was an Error of Law ................................................................. 23 The District Court Should Have Determined the Applicability of Section 230 at the Earliest Possible Stage...... 24

The District Court Opinion Threatens Other Online Platforms That Make Available a Wide Range of Divergent and Valuable Speech.................................................................................................. 25

CONCLUSION ........................................................................................................ 29

(ii)

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Table of Authorities CASES Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006) ................................8 Asia Economic Institute v. Xcentric Ventures, LLC, No. CV 10-01360 SVW (PJWX), 2011 WL 2469822 (C.D. Cal. May 4, 2011) ............................21 Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) .......................................................13 Ben Ezra, Weinstein, and Company, Inc. v. America Online, Inc., 206 F.3d 980 (10th Cir. 2000) ....................................................................................8 Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) .........................8 Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) ...................................................12 Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991) ....................11 DiMeo v. Max, 248 F. App’x 280 (3d Cir. 2007) ....................................................25 Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) .................................................8 Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216 (9th Cir. 2012) ..................................................................16 Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008) .................................................... 9, 15, 17, 21, 22 Federal Trade Commission v. Accusearch, 570 F.3d 1187 (10th Cir. 2009) ................................................................... 8, 15, 17, 18, 19, 21, 22, 23, 24 Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929 (D. Ariz. 2008) ...................................................................................................20 Green v. America Online (AOL), 318 F.3d 465 (3d Cir. 2003) ................ 8, 9, 13, 25 GW Equity LLC v. Xcentric Ventures LLC, Civil Action No. 3:07-CV976-O, 2009 WL 62173 (N.D. Tex. Jan. 9, 2009) .............................................21 Hurt v. Coyne Cylinder Co., 956 F.2d 1319 (6th Cir. 1992) ...................................13
(iii)

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Johnson v. Arden, 614 F.3d 785 (8th Cir. 2010) .......................................... 8, 22, 25 Jones v. Dirty World Entertainment Recordings, LLC, 766 F. Supp. 2d 828 (E.D. Ky. 2011).......................................................................................3, 13 Jones v. Dirty World Entertainment Recordings, LLC, 840 F. Supp. 2d 1008 (E.D. Ky. 2012) .................................................................. 3, 15, 18, 19 Jones v. Dirty World Entertainment Recordings, LLC, Civil Action No. 09-219-WOB, --- F. Supp. 2d ---, 2013 WL 4068780 (E.D. Ky. Aug. 12, 2013) ..................................................................... 4, 12, 15, 22, 23 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) ...............................................19 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009)........................................................................................... 8, 9, 25 Parker v. Google, Inc., 242 F. App’x 833 (3d Cir. 2007) .........................................9 S.C. v. Dirty World, LLC, No. 11-CV-00392-DW, 2012 WL 3335284, at *3 (W.D. Mo. Mar. 12, 2012) ........................................................................20 Seaton v. TripAdvisor LLC, 728 F.3d 592 n.8 (6th Cir. 2013) ..................................8 Stratton Oakmont, Inc. v. Prodigy Services Co., Trial IAS Part 34, 1995 WL 323710 (N.Y. Supr. Ct. May 24, 1995) ...................................... 10, 11 Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) ..................................................................................................8, 9 Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) ........................ 8, 9, 11 STATUTES 15 U.S.C. § 45(a) .....................................................................................................17 47 U.S.C. § 230 ................................................................................................ passim RESTATEMENT (SECOND) OF TORTS § 578 (1977) ....................................................10 OTHER AUTHORITIES 141 CONG. REC. at H8469-H8470; H8471 ..............................................................11

(iv)

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INTRODUCTION In this case, Appellants were improperly held liable for publishing on their website defamatory statements written by a third party. In denying Appellants’ repeat claims for immunity under federal law, the district court misapplied Section 230 of the Communications Decency Act, 47 U.S.C. § 230 (“Section 230”) and erroneously permitted this case to proceed to trial. If upheld, the district court’s ruling would be an outlier among the federal courts and could have a profound chilling effect on other providers of online services, threatening the broad diversity of protected speech on the Internet. As passed by Congress and uniformly applied by courts across the country, Section 230 immunizes online service providers—such as broadband providers, hosting companies, and website operators like Appellants from liability based on material authored by users. Notwithstanding this protection, the district court found that Appellants effectively transformed their website into one unprotected by Section 230’s blanket immunity through a series of actions unrelated to the creation of specific defamatory content: inviting users to submit gossipy material, commenting in reaction to such material, and naming the website “The Dirty.” The district court’s interpretation of Section 230 is contrary to the plain language of the statute and at odds with virtually every court to consider its application.

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Appellant TheDirty.com hosts frequently offensive—and, indeed, sometimes actionable—gossip.1 Yet that fact, even in combination with the other factors observed by the district court, does not divest Appellants of Section 230’s clear protections. Nor should it. Indeed, removing websites from the legal line of fire when their users engage in actionable behavior was one of the primary motivations behind the enactment of Section 230. Whatever the district court’s views about Appellants’ conduct, that conduct is by definition not actionable. The district court’s analysis, in pinning liability to TheDirty.com’s encouragement of a generally disparaging atmosphere, contains no limiting principles to prevent its application to a wide array of websites—for example, sites that collect, aggregate, display and react to consumer reviews or reports of malfeasance—that solicit and host critical speech. The judgment below represents a departure from the current consensus among the federal courts recognizing Section 230’s robust immunity from liability for the speech of others. Amici curiae, representing a wide range of organizations and constituencies dedicated to protecting First Amendment interests, urge this Court to reverse the
1

It is worth noting that gossip is not in and of itself defamatory; in fact, gossip — including some hosted by TheDirty.com—frequently includes speech on matters of undisputed public concern. See, e.g., Katie Glueck, TheDirty.com: Ben Quayle, now Anthony Weiner, available at http://www.politico.com/story/2013/07/ thedirtycom-first-ben-quayle-now-anthony-weiner-94801.html (last visited Nov. 15, 2013) (detailing how TheDirty.com’s content, including intimate p hotos of Representative Weiner, has repeatedly “rocked the political world.”). 2

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judgment below and to preserve the broad speech-protective immunity intended by Congress and regularly applied nationwide. FACTUAL AND PROCEDURAL BACKGROUND Appellee Sarah Jones sued Appellants Dirty World, LLC, operator of the website TheDirty.com, and Appellant Nik Richie, a blogger who serves as its editor-in-chief and publisher, claiming that they published defamatory material about her.2 The complaint made no allegation that Appellants had themselves created or developed any actionable content.3 Accordingly, Appellants moved for dismissal and summary judgment, arguing that they were entitled to immunity under Section 230 of the CDA. Section 230 provides immunity to website operators and other online providers for content created by third parties unless plaintiffs can show that the operators themselves created or developed the content at issue. 47 U.S.C. § 230 (c); 47 U.S.C. § 230 (f)(3). The district court denied Appellants immunity on the basis that they “encouraged” defamatory content from third parties. Jones v. Dirty World

Entertainment Recordings, LLC, 766 F. Supp. 2d 828, 829 (E.D. Ky. 2011) (“Jones I”); Jones v. Dirty World Entertainment Recordings, LLC, 840 F. Supp. 2d 1008, 1012 (E.D. Ky. 2012) (“Jones II”). A jury ruled in favor of Jones, and awarded her $338,000 in compensatory and punitive damages. The district court
2 3

Second Am. Compl., RE 22, Page ID# 74-81, ¶9. See id. 3

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then denied Richie and TheDirty.com’s motion for judgment as a matter of law. Jones v. Dirty World Entertainment Recordings, LLC, Civil Action No. 09-219WOB, --- F. Supp. 2d ---, 2013 WL 4068780, at *4 (E.D. Ky. Aug. 12, 2013) (“Jones III”). This appeal followed. INTERESTS OF AMICI The American Civil Liberties Union (“ACLU”) is a nationwide, nonpartisan organization with over 500,000 members and supporters dedicated to the principles of liberty and equality embodied in the United States Constitution. The ACLU’s Speech, Privacy & Technology Project works to promote and safeguard individuals’ constitutional and statutory speech rights, particularly as developing technology presents new challenges to and opportunities for free speech. The ACLU of Kentucky—the ACLU’s state affiliate in the Commonwealth—has a long history of advocating for the civil rights and civil liberties of Kentuckians under both the United States and Kentucky Constitutions. The Electronic Frontier Foundation (“EFF”) is a non-profit, membersupported civil liberties organization that works to protect rights in the digital world. EFF encourages and challenges industry, government and the courts to support free expression, privacy, and openness in the information society. It is particularly concerned that laws and regulations not be used to stifle free expression on the Internet by holding intermediaries liable where the content in

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question originates with a third party. EFF supports a broad interpretation of Section 230 of the Communications Decency Act because this statute has played a vital role in allowing millions of people to create and disseminate user-generated content through the Internet, enriching the diversity of offerings online. EFF has participated in a significant number of cases addressing the interpretation of this statute. The Center for Democracy & Technology (“CDT”) is a non-profit public interest and Internet policy organization. CDT represents the public's interest in an open, decentralized Internet reflecting constitutional and democratic values of free expression, privacy, and individual liberty. CDT has litigated or otherwise participated in a broad range of Internet free expression cases, and works to protect the ability of websites and other service providers to offer new opportunities for online speech unfettered by government regulation or censorship. The Digital Media Law Project (“DMLP”) is an unincorporated association hosted by the Berkman Center for Internet & Society at Harvard University. The DMLP is an academic research project that studies challenges to online journalism and networked communication and responds with publicly accessible tools and legal resources. The DMLP frequently appears as amicus curiae in cases where the application of law will have a significant effect on the use of digital media to inform the public.

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The Public Participation Project (“PPP”) is a national non-profit organization dedicated to protecting citizens from lawsuits designed to chill their ability to speak out on issues of public interest. Because many states still do not provide sufficient protections for such speech and petitioning activities, PPP is working to pass federal anti-SLAPP legislation. PPP also assists in efforts to pass similar legislation in individual states, and it monitors SLAPP developments in legislatures and courts across the country. Consistent with its support for

legislation that protects against SLAPPSs, PPP supports Section 230 of the Communications Decency Act. Defendants “SLAPPed” in retaliation for online speech often invoke the protections of Section 230. Section 230 is essential to ensuring that free speech rights guaranteed by the First Amendment are upheld in the digital age. PPP is very concerned about the precedent that this case could set for Internet content providers that publish user generated content on their sites. Wendy Seltzer is a Fellow with the Berkman Center for Internet & Society at Harvard University. She founded and developed the Chilling Effects Clearinghouse, a public resource providing a database of “cease and desist” communications sent regarding Internet content. Adam Holland is a Project Coordinator at the Berkman Center, and the Project Coordinator for Chilling Effects. Chilling Effects gathers submissions from online service providers, users of online services, and copyright holders and makes those submissions available

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with annotations and categorization for review and study by scholars and interested members of the general public through its website, www.chillingeffects.org. ARGUMENT The district court’s decisions in this case denying Appellants immunity are in direct conflict with the text of Section 230 and relevant case law. Section 230 provides that no Internet provider may be held liable for content it hosts unless it is itself “responsible, in whole or in part, for the creation or development of [such] information.” 47 U.S.C. § 230(f)(3). Federal courts have consistently held that website operators may be held responsible for developing unlawful material only if the facts demonstrate that the operator unambiguously solicited or induced content that is itself unlawful. No such facts have been found in this case. A. Section 230 Broadly Immunizes Content Providers Against Liability for Information Created by Others.

Under 47 U.S.C. § 230 (c), “[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.” See also 47 U.S.C. § 230 (f)(3) (“The term ‘information content provider’ means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”). The statute thus

immunizes Internet providers from liability for material provided by third parties, i.e., other “information content provider[s].” See Seaton v. TripAdvisor LLC, 728 7

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F.3d 592, 599 n.8 (6th Cir. 2013); Green v. America Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003) (Section 230 “bars ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions.’” ) (quoting Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). When the broad immunity of § 230(c)(1) is read alongside § 230(e)(3), which prohibits liability under state or local laws inconsistent with the immunity provision, “these provisions bar state-law plaintiffs from holding interactive computer service providers legally responsible for information created and developed by third parties.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009) (citation omitted). Thus, “[c]ourts have

construed the immunity provisions in § 230 broadly in all cases arising from the publication of user-generated content.” Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).4 Website operators can waive Section 230 immunity by specifically “developing” illegal content. See, e.g., Federal Trade Commission v. Accusearch, 570 F.3d 1187, 1197-98 (10th Cir. 2009); see also Fair Housing Council of San

4

See also Johnson v. Arden, 614 F.3d 785, 791 (8th Cir. 2010); Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007); Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321-22 (11th Cir. 2006); Green, 318 F.3d at 471; Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003); Ben Ezra, Weinstein, and Company, Inc. v. America Online, Inc., 206 F.3d 980, 984-85 (10th Cir. 2000). 8

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Fernando Valley v. Roommates.com, 521 F.3d 1157, 1175 (9th Cir. 2008). Such a waiver does not happen easily, however. “Congress . . . established a general rule that providers of interactive computer services are liable only for speech that is properly attributable to them.” Nemet Chevrolet, 591 F.3d at 254. The statute “precludes courts from entertaining claims that would place a computer service provider in a publisher’s role.” Zeran, 129 F.3d at 330. This means that “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” Zeran, 129 F.3d at 330. Thus, Section 230 broadly immunizes a website operator from state law claims if the claim “would treat [the website provider] ‘as the publisher or speaker’ of that [information].” Lycos, 478 F.3d at 422; see also Parker v. Google, Inc., 242 F. App’x 833, 838 (3d Cir. 2007); Green, 318 F.3d at 471. Because

Appellants’ role as publisher was precisely the source of liability in the judgment below, it must be reversed as inconsistent with Section 230. B. A Broad Application of Section 230 Immunity Is Consistent With Congressional Intent.

A principal goal of the Communications Decency Act was to “remove disincentives” for Internet users and providers to screen objectionable material

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from their services. 47 U.S.C. § 230(b)(4).5 Congress accomplished that objective as part of a comprehensive legislative package that preserved the Internet’s dynamic nature. See 47 U.S.C. § 230(1)-(2) (noting congressional intent “to

preserve the vibrant and competitive free market” on the Internet “unfettered by Federal or State regulations”). Congress established powerful structural service providers would be

protections to guide the Internet’s development:

uniformly protected from suit based on users’ behavior, and if service providers voluntarily removed objectionable content, they could do so without fear of legal consequences. These protections are enshrined in Section 230. The specific impetus for Section 230 was a critical question regarding how the Internet would develop: could service providers be held responsible as common law “publishers” for content on their websites?6 In the mid-1990s, courts struggled to apply traditional common law doctrines to this new technology. One federal court took the view that common law republication liability could not be used against a website that republished content generated entirely by a third party. See
5

As discussed more fully below, these “disincentives” were created by legal opinions holding Internet providers liable for third-party content because they had chosen to filter out other content. See Stratton Oakmont, Inc. v. Prodigy Services Co., Trial IAS Part 34, 1995 WL 323710, at *4 (N.Y. Supr. Ct. May 24, 1995). 6 RESTATEMENT (SECOND) OF TORTS § 578 (1977) specifies the circumstances in which a republisher of third-party content will be liable for defamation: “[e]xcept as to those who only deliver or transmit defamation published by a third person, one who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it.” 10

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Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 140-41 (S.D.N.Y. 1991) (recognizing that because websites obtain and share information instantaneously, it is impossible for a website operator to verify the truthfulness of all republished content). Another court found a website operator liable under the republication

doctrine for hosting a bulletin board that included an allegedly defamatory post from a third party. Stratton Oakmont, at *4 (relying on fact that website operator controlled third party content on the website through the use of screening and moderators that enforced decency guidelines). Congress enacted Section 230 to eliminate the uncertainty with which the providers in Cubby and Stratton Oakmont grappled. The two competing opinions were explicitly cited during congressional debates over the statute’s language, which effectively reversed Stratton Oakmont. 141 CONG. REC. at H8469-H8470 (statement of Rep. Cox); see also id. at H8471 (statement of Rep. Goodlatte) (“We are talking about something that is far larger than our daily newspaper. We are talking about something that is going to be thousands of pages of information every day, and to have that imposition [republication liability] imposed on them is wrong.”); Zeran, 129 F.3d at 331 (“Congress enacted § 230 to remove the disincentives to selfregulation [sic] created by the Stratton Oakmont decision.”). Citing a Seventh Circuit decision, the district court in this case suggested “that [Section 230] does not provide a ‘grant of comprehensive immunity from

11

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civil liability for content provided by a third party.’” Jones III at *1 (quoting Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc. , 519 F.3d 666, 670 (7th Cir. 2008)). The district court’s overbroad reading of Craigslist to determine that Appellants were categorically ineligible for Section 230 immunity was inconsistent with the clear judicial consensus regarding the statute. While the Seventh Circuit described Section 230’s immunity provision as a definitional clause, the Seventh Circuit’s analysis is functionally consistent with other federal courts interpreting Section 230. Craigslist, 519 F.3d at 670

(quotation omitted). Craigslist merely reinforces what the majority of federal courts already agree upon—that “[w]hat § 230(c)(1) says is that an online information system must not ‘be treated as the publisher or speaker of any information provided by’ someone else.” Id. at 671. In other words, if a cause of action derives from treating a website operator as the “publisher” of content provided by another, then immunity is available. At heart, Congress sought to minimize government regulation of the Internet by declining to apply the republication doctrine to the fast-developing Internet world. The district court’s attempt to carve out an exception to this broad grant of immunity based on collateral (and ultimately legally irrelevant) considerations such as broadly inviting users to engage in disparaging (though certainly not necessarily actionable) speech or subsequently commenting on that speech

12

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squarely conflicts with Congress’ attempt to protect intermediaries from liability in such disputes. The District Court’s analysis must be rejected. C. The District Court Erred In Refusing to Extend Section 230 Immunity to Appellants.

Appellants did not author, create, or develop the defamatory content at issue in this case; instead, they provided a platform on which others posted their own material.7 Indeed, nothing makes that plainer than the text of Jury Instruction No. 3 from the second Jones trial: it states that Appellants “had the same duties and liabilities for re-publishing libelous material as the author of such materials.”8 The instruction flatly conflicts with the text of Section 230 and directed jurors toward a finding prohibited by law. 47 U.S.C. § 230 (f)(3); see also Green, 318 F.3d at 471. Accordingly, the jury instruction alone constitutes prejudicial and reversible error. Hurt v. Coyne Cylinder Co., 956 F.2d 1319, 1324 (6th Cir. 1992). Nonetheless, the district court ruled that the application of liability was proper because Appellants were ineligible for immunity under Section 230. The court held that although they did not create unlawful content, Appellants implicitly developed unlawful content posted by others by encouraging a generally critical
7

The record reflects that while Richie commented on the defamatory material and added “taglines,” he did not alter the original content and posted it as submitted, adding his editorial comments at bottom. “[T]he exclusion of ‘publisher’ liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message.” Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003). 8 Jury Instructions, No. 3, RE 207, Page ID# 3120. 13

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and ribald environment. Specifically, the court pointed to factors such as the website’s name (TheDirty.com) and Appellant Richie’s encouragement of Internet commenters’ negative commentary as proof that Appellants were responsible for developing the specific defamatory content at issue in this case. The district court was incorrect. This holding is in direct conflict with the purpose of the CDA, the text of Section 230, and relevant case law. 1. The District Court Misapplied Relevant Case Law in Determining that Appellants Developed Unlawful Material.

The key question before this Court is whether Appellants themselves created or developed the defamatory content at issue, removing themselves from Section 230’s protection. 47 U.S.C. § 230(f)(3) (defining a content provider as one “responsible . . . for the creation or development of information.”). The district court ruled Appellants ineligible for Section 230 immunity based on the erroneous conclusion that they “developed” the content in question. Specifically, the court held: [T]hese postings and others like them were invited and encouraged by the defendants by using the name “Dirty.com” for the website and inciting the viewers of the site to form a loose organization dubbed “the Dirty Army,” which was urged to have “a war mentality” against anyone who dared to object to having their character assassinated.

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Jones III, at *3; see also Jones II, 840 F. Supp. 2d at 1012-13. The district court’s conclusion was incorrect. Section 230 does not define the terms “responsible” or “development.” See Roommates.com, 521 F.3d at 1162. In Jones II, the district court correctly cited Roommates.com and Accusearch as seminal opinions in which federal circuit courts have defined—and found—liability based on a website operator’s “development” of unlawful content.9 Jones II, 840 F. Supp. 2d at 1010. Both the Ninth and Tenth Circuits were careful to limit development-based liability to parties that actively, knowingly, and materially participate in the unlawful aspect of actionable content. The district court’s analysis, on the other hand, dramatically expands possible avenues for development-based liability in a manner that poses risks for any website that encourages critical—though not unlawful—speech. Both appellate decisions addressed materially different conduct than that at issue here. Roommates.com involved a website designed to “match people renting out spare rooms with people looking for a place to live.” Roommates, 521 F.3d at 1161. Before individuals could use the website, they were required to provide information about themselves and their housing preferences—including their sex,
9

While the Accusearch opinion separately parsed out the definition of the words “responsible” and “development,” 570 F.3d at 1198-99, this brief cites that decision’s final holdings in determining when a user is responsible for developing content. This brief refers to that analysis, taken as a whole, as “development-based liability.” 15

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sexual orientation, and willingness to live with a roommate with children—that was allegedly banned by the federal Fair Housing Act.10 Id. The Ninth Circuit began its analysis by noting that “[t]he CDA does not grant immunity for induc ing third parties to express illegal preferences.” Id. at 1165. The court found that the website’s search function required users to input discriminatory criteria. See id. at 1166-67; see also id. at 1175. In the court’s view, because the website’s design required users to provide unlawful content to use the service, the website operator was itself responsible for developing the content. The court defined the operator’s development as “not merely . . . augmenting the content generally, but . . . materially contributing to its alleged unlawfulness.” Id. at 1167-68. The court explained that: By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. Id. at 1166 (emphasis added).

10

Notwithstanding its decision that the website operator’s conduct brought it outside of Section 230’s protections, the Ninth Circuit ultimately held that the Fair Housing Act did not apply to the selection of roommates, and therefore that the website’s “facilitation of discriminatory roommate searches [did] not violate the FHA.” Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1222 (9th Cir. 2012). 16

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Accusearch involved a similar allegation against an online provider hosting unlawful material. The website in Accusearch sold personal data, including

confidential records protected under the Telecommunications Act, 15 U.S.C. § 45(a), to customers who paid an “administrative search fee.” Accusearch, 570 F.3d at 1191-92. The website retained researchers to find personal data, and in turn provided that confidential information to requesting customers. Id. As in Roommates.com, the website claimed Section 230 immunity. Id. at 1195. Analyzing whether the website was responsible for the development of legallyprotected information, the Tenth Circuit explained that “a service provider is ‘responsible’ for the development of offensive content only if it in some way specifically encourages development of what is offensive about the content.” Id. at 1199 (emphasis added).11 The Accusearch court found that the website operator knew “that its researchers were obtaining the information through fraud or other illegality,” id., and that it directly encouraged that illegality “[b]y paying its researchers to acquire telephone records, knowing that the confidentiality of the records was protected by law . . . .” Id. at 1200. Thus, by knowingly paying for illegal content—when that
11

The Accusearch opinion uses the word “offensive” as synonymous with “actionable.” Cf. Accusearch, 570 F.3d 1199-1200. As there is little doubt the content on TheDirty.com is colloquially offensive, it is important to note that the Accusearch opinion never suggested that liability could attach to any speech that was distasteful but not specifically unlawful. 17

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content was the website’s “raison d’être”—the website in Accusearch specifically “developed” the unlawful aspects of the content, preventing Section 230 immunity. Id. Both opinions condition the loss of Section 230 immunity on an online service provider’s direct and intentional participation in unlawful acts. In

Roommates.com, the website could not be used without the provision of unlawful content. In Accusearch, the consumer product was only available due to the website’s knowing payment for content obtained illegally. No comparable

requirements or behavior exist here. While TheDirty.com may host distasteful and potentially actionable content, it does not require or request the submission of unlawful material.12 While some of the material hosted on its site may be

offensive, and while some of Appellants’ actions (such as subsequently commenting about offensive content) may be unseemly, they are neither independently unlawful nor sufficient to trigger the loss of Section 230 immunity. 2. The District Court’s Application of an “Encouragement Test” Was an Error of Law.

In its opinions applying Section 230, the district court erred in two distinct ways. In its first order, Jones II, the district court relied largely on an

“encouragement” theory of liability, 840 F.Supp. 2d at 1012-13; in Jones III, it also
12

On the contrary, the Appellants took steps to prevent it: in order to access TheDirty.com, users must agree not to post any defamatory or otherwise unlawful material. 18

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found Appellants’ “ratification” of unlawful content made them ineligib le for immunity. See Jones III, at *4. These analyses both constitute errors of law. In Jones II, the district court engaged in its first significant analysis of Appellants’ claim for immunity. Specifically, the court held: This Court holds by reason of the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie, the defendants have specifically encouraged development of what is offensive about the content of the site. One could hardly be more encouraging of the posting of such content than by saying to one’s fans (known not coincidentally as “the Dirty Army”): “I love how the Dirty Army has war mentality.” Jones II, 840 F. Supp. 2d at 1012-1013. In so holding, the court relied on two authorities: a law review article and a dissent. Id. at n.5. This is unsurprising, as no other case has extended development-based liability so far. The flaw in the Jones II logic is that no factor found dispositive by the court—the name of the site (TheDirty.com), the manner in which it is managed (selecting posts and reacting to users’ comments) , nor the comments of Appellant Richie (per se non-defamatory postings and encouragement of the site’s commenters’ “war mentality,” Jones II, 840 F. Supp. 2d at 1012-13)—is tethered to any illegality. “Dirt” is gossip, not per se defamation. See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 15-16 (1990) (explaining constitutional limits on defamatory content, and noting requirements of both factual falsity and fault). Reacting to user comments is the very nature of the Internet, not to mention the precise behavior distinguished by the Accusearch opinion as the “prototypical” 19

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activity qualifying for Section 230 immunity.13 And Richie’s encouragement of reactive criticism by the sites’ users (“war mentality”) reflects no inherent illegality. Section 230 immunity cannot and does not depend on the extent to which users exceed the scope of any specific encouragement of a service provider and independently engage in actionable behavior themselves. The specific factors cited by the district court do not alter the conclusion that Section 230 immunity must apply. The website name “TheDirty.com” and

Appellant Richie’s non-defamatory musings both constitute protected speech and provide no support for undermining their statutory immunity. See, e.g., Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929, 933 (D. Ariz. 2008) (“[T]here is no authority for the proposition that [the website title] makes the website operator responsible, in whole or in part, for the ‘creation or development’ of every post on the site.”). Indeed, website operators routinely receive immunity under Section 230 despite providing instructions for third party posts and supplementing those posts with captions, titles, comments, and metadata.14

13

“The prototypical service qualifying for this statutory immunity is an online messaging board (or bulletin board) on which Internet subscribers post comments and respond to comments posted by others.” Accusearch, 570 F.3d at 1195 (quotation omitted). As Section 230 covers Internet providers and users alike, the district court’s analysis here could equally (and problematically) be applied to a bulletin board commenter who reacts favorably to another’s unlawful speech. 14 See, e.g., S.C. v. Dirty World, LLC, No. 11-CV-00392-DW, 2012 WL 3335284, at *3 (W.D. Mo. Mar. 12, 2012) (comments by website operator on third-party (footnote continued on following page) 20

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To the extent the district court opinions take refuge in Roommates.com and Accusearch, such refuge is misplaced. As previously discussed, the two circuit opinions contain narrow holdings that the activity solicited, induced, or “encouraged” by the website must itself be unlawful to establish developmentbased liability. Conversely, when a website provider creates an open platform on which users may engage in actionable behavior, Section 230’s categorical immunity applies. In Roommates.com, for example, a separate section of the website prompted users to describe themselves and their preferences for a roommate. Even though that open-ended interface permitted a user to engage in actionable behavior on his or her own, the Ninth Circuit held that Section 230 immunity applied to this process. Roommates.com, 521 F.3d at 1173-74. The website published the comments as written, did not provide any “specific guidance” as to what users should write, and did not require users to submit discriminatory preferences. Id. Accordingly, that portion of the website “[was] not responsible, in whole or in part, for the development of [that] content, which [came] entirely from subscribers and [was] passively displayed by [the website].”

(footnote continued from preceding page) posts); Asia Economic Institute v. Xcentric Ventures, LLC, No. CV 10-01360 SVW (PJWX), 2011 WL 2469822, at *3, 6-7 (C.D. Cal. May 4, 2011) (offering of “style guidelines” and addition of “meta tags” to third -party posts by operator); GW Equity LLC v. Xcentric Ventures LLC, Civil Action No. 3:07-CV-976-O, 2009 WL 62173, at *6-7 (N.D. Tex. Jan. 9, 2009) (addition of title to third party’s posts). 21

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Id. at 1174. The portion of the Roommates.com website that was held ineligible for immunity did more than merely encourage unlawful content; it required users to input unlawful content in order to access the site. Id. at 1166-67. Similarly, the website in Accusearch developed unlawful content by knowingly paying researchers to engage in illegal conduct. Accusearch, 570 F.3d at 1200. The court below made no findings that Appellants required or solicited unlawful content. The facts relied on by the district court—the website’s name and creation of comment sections where users may post critical commentary—are the sort of passive encouragement the Ninth Circuit explicitly anticipated and held non-actionable in Roommates.com. Roommates.com, 521 F.3d at 1175 (“[T]ext prompt with no direct encouragement to perform illegal searches or to publish illegal content” is “entirely immune from liability”); see also Accusearch, 570 F.3d at 1195.15 The gravamen of the district court’s finding is that Appellants’ web presence is insulting and critical. Without a specific solicitation or requirement that third

15

The District Court pointed to Arden, in which the Eighth Circuit suggested in dicta that a website operator could lose immunity if it “designed its website to be a portal for defamatory material or [did] anything to induce defamatory postings.” Jones III at *2, citing 614 F.3d at 792. But nothing in Arden, which found the defendants eligible for CDA immunity, suggested the court was deviating from the development-based liability analysis laid out in Accusearch, on which it relied, 614 F.3d at 791, and which require website operators to be directly responsible for the illegal nature of actionable content to defeat immunity. 22

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parties find and submit defamatory content about Appellee, Richie and TheDirty.com were not legally responsible for the defamatory content and cannot qualify as information content providers. As such, the district court’s initial

Section 230 analysis is wrong as a matter of law, has no support in circuit case law, and should be overturned by this Court. 3. The District Court’s Application of a “Neutrality Test” Was an Error of Law.

In Jones III, the court expanded its erroneous Section 230 analysis by finding that Appellant Richie’s “adoption” of actionable comments prevented Section 230 immunity. In reaching its conclusion, the district court cited a single line from Accusearch: “That is, one is not ‘responsible’ for the development of offensive content if one's conduct was neutral with respect to the offensiveness of the content.” Jones III, at *2 (quoting Accusearch, 570 F.3d at 1199). The district court relied on this statement to conclude that in “add[ing] his own comments to the defamatory posts,” Jones III, at *2, Richie “effectively ratified and adopted the defamatory third-party post” and was therefore not “neutral.” Id. at *4. This separate line of the district court’s reasoning is also erroneous and must be reversed. In essence, the district court adopted a “neutrality” test independent of actual development: if a website reacts to actionable material in a favorable way, it is not “neutral,” and thus directly liable for the third party’s speech. The district court, 23

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while relying on Accusearch, neglected to follow the rule enunciated just three sentences later in the opinion: “We therefore conclude that a service provider is ‘responsible’ for the development of offensive content only if it in some way specifically encourages development of what is offensive about the content.”16 Accusearch, 570 F.3d at 1199 (emphasis added). Accusearch provides no support for the district court’s rule that an after-the-fact reaction to an actionable post can in any way have “specifically encouraged” the illegality of the prior post. There is no support in Section 230 for a holding that reactive speech, not itself defamatory nor instructing others to engage in actionable behavior, can retroactively develop the comment it is reacting to. That analysis defies case law and common sense. As with the “encouragement” analysis, the court makes its distaste for Appellants clear. But the law requires more: a specific finding that Appellants knowingly, specifically, and intentionally developed the defamatory posts that third parties placed on TheDirty.com. That finding has not been made in the court below, and the judgment should therefore be reversed. 4. The District Court Should Have Determined the Applicability of Section 230 at the Earliest Possible Stage.

Because Section 230 provides broad, robust immunity from tort liability, the District Court should have “aim[ed] to resolve the question of § 230 immunity at the earliest possible stage of the case because that immunity protects websites not
16

See supra n.10. 24

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only from ‘ultimate liability,’ but also from ‘having to fight costly and protracted legal battles.’” Nemet Chevrolet, 591 F.3d at 255. Tellingly, the Second Amended Complaint in this case cites Appellants’ republication of content as the basis for liability, noting only that TheDirty.com and Richie “publish[ed] an article about the Plaintiff.”17 Once again, there are no facts suggesting Appellants created or developed defamatory content. In the

absence of such facts, Appellants enjoyed Section 230 immunity that should have been granted at the earliest opportunity. See, e.g., DiMeo v. Max, 248 F. App’x 280, 282 (3d Cir. 2007) (affirming case dismissal because plaintiff did not allege that the website operator created or developed the posts on the website); see also Arden, 614 F.3d at 791 (finding immunity when it was undisputed that damaging material originated from third party); Green, 318 F.3d at 470 (same). As the complaint cited no evidence that Appellants were information content providers under Section 230, immediate dismissal of all claims would have been the proper action. D. The District Court Opinion Threatens Other Online Platforms That Make Available a Wide Range of Divergent and Valuable Speech.

Amici file this brief not only to reiterate the legal standard that should govern this case but also to underscore that the district court’s opinion, if upheld, would
17

Second Am. Compl., RE 22, Page ID# 74-81, ¶9. 25

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undermine intermediary immunity for other sites, threatening the existence of platforms that welcome undeniably legal though critical speech. It is crucial for this Court to distinguish between the explicit solicitation of actionable information from users, and the general solicitation of information that might turn out to be actionable, or simply damaging to particular individuals or businesses. Revoking a website’s protection under Section 230 because the site solicits “negative” content in the abstract would threaten a wide variety of specific sites and projects that serve undeniably important public purposes by leaving them vulnerable to precisely the kind of expensive legal challenge that followed here. Like Appellants, the following websites: (1) solicit and encourage users to provide truthful content damaging to businesses or individuals; (2) collect, aggregate, and display the content submitted by their users; and (3) rely on, and react to, this user-generated data in providing services to the public. Any legal test that turned on these websites’ “encouragement” of disparaging content or their “adoption” of users’ claims would eviscerate the certainty of protection they currently enjoy under Section 230. Chilling Effects (http://chillingeffects.org) collects cease and desist notices relating to online speech from a wide variety of sources and compiles them in a searchable online database. This database allows researchers to identify how such

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notices are used in certain contexts and the effect of these notices on freedom of expression online. Fraud.org (http://fraud.org) collects thousands of consumer complaints and actively shares them with a network of more than ninety law enforcement organizations that have partnered with the organization. Id. This large database allows law enforcement to identify “patterns of fraud,” an essential element of stopping online fraud. Scam FAQs, Fraud.org, http://fraud.org /learn/faqs (last visited Nov. 13, 2013). Frack Check WV (http://www.frackcheckwv.net) asks West Virginians to report their experiences with fracking in their communities in order to “provide[] readers with information to help influence public policy decisions” on fracking, to describe negative “environmental impacts [that] can result from Marcellus shale gas well drilling,” and to “document what’s happening locally” and “organize accordingly.” Your Report, Frack Check WV, http://www.frackcheckwv.net/yourreport/ (last visited Nov. 13, 2013). The Brian Lehrer Show: Are You Being Gouged? In 2007,

(http://www.wnyc.org/shows/bl/2007/sep/24/are-you-being- gouged).

The Brian Lehrer Show on NPR affiliate WNYC Radio asked listeners to report online the cost of milk, beer, and lettuce at their local grocery stores and based on user comments, built a map showing the most and least expensive places to

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purchase the items. The show was awarded a Peabody Award for excellence in journalism, in part because of its innovative use of citizen participation. Clear Health Costs (http://clearhealthcosts.com) brings transparency to the health care market in the United States using an online database providing users with data on the cost of medical procedures at different health care providers. Some of this data comes from users, who submit information on what they paid for medical services. See Clear Health Costs, FAQ, http://clearhealthcosts.com/faq (last visited Nov. 15, 2013). It would be extremely difficult to create a comparable database of healthcare costs without relying on user contributions. See generally U.S. Gov’t Accountability Office, Health Care Price Transparency: Meaningful Price Information is Difficult for Consumers to Obtain Prior to Receiving Care (2011), available at http://www.gao.gov/products/GAO-11-791. The Bed Bug Registry (http://www.bedbugregistry.com) is a public database containing user-submitted reports of bed bugs in public spaces throughout Canada and the United States. According to its home page, in the last several years “the site has collected about 20,000 reports covering 12,000 locations.” As businesses are very unlikely to volunteer information about bed bug infestations on their property, the user-generated nature of the registry enables this public service. All of the providers listed above rely upon third parties to contribute content to their platforms and specifically invite them to contribute potentially damaging

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content. In response to such invitations, it is possible that users may submit information that is actionable. And in turn, websites like those above assume the truthfulness of user-submitted content and “adopt” users’ damaging speech by, for example, creating their own content (such as blogs or reports) relying on the accuracy of user-submitted data, reporting user complaints to law enforcement, or developing tools or databases incorporating user content as true. These websites, in seeking speech that is inherently damaging about others, provide a public service—even if some of that damaging speech should turn out to be defamatory. The existence of this type of user-generated watchdog site is made possible by Section 230, under which the responsibility for any actionable postings falls squarely on the individuals who contributed them and not on the platform providers themselves. Absent such protection, providers such as these will likely refrain from such groundbreaking contributions that are unquestionably in the public interest, undermining one of Congress’ explicit policy priorities. See 47 U.S.C. § 230(a)(3) (“The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”). CONCLUSION The district court’s refusal to dismiss this action was a clear error of law. Section 230 of the Communications Decency Act was passed precisely to protect

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website operators from being constantly hauled into court over the speech of their users. This Court should reverse and remand with an order of dismissal. Respectfully submitted, s/ Junis L. Baldon Junis L. Baldon Mark A. Flores Brandon W. Gearhart FROST BROWN TODD LLC 400 West Market Street, 32nd Floor Louisville, KY 40202 (502) 589-5400 (502) 581-1087 (FAX) jbaldon@fbtlaw.com mflores@fbtlaw.com bgearhart@fbtlaw.com ACLU of Kentucky Cooperating Attorneys William E. Sharp ACLU OF KENTUCKY 315 Guthrie Street, Suite 300 Louisville, KY 40202 (502) 581-9746 (502) 589-9687 (FAX) sharp@aclu-ky.org Attorney for amicus curiae ACLU of Kentucky Matthew Zimmerman ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 (415) 436-9333 (415) 436-9993 (FAX) mattz@eff.org Attorney for amicus curiae EFF Lee Rowland AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 (212) 549-2654 (FAX) lrowland@aclu.org Attorney for amicus curiae ACLU Emma J. Llansó CENTER FOR DEMOCRACY & TECHNOLOGY 1634 I Street NW, Suite 1100 Washington, DC 20006 (202) 637-9800 (202) 637-0968 (FAX) ellanso@ctt.org Attorney for amicus curiae CDT

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Jeffrey P. Hermes Christopher T. Bavitz Andrew F. Sellars CYBERLAW CLINIC DIGITAL MEDIA LAW PROJECT BERKMAN CENTER FOR INTERNET & BERKMAN CENTER FOR INTERNET & SOCIETY SOCIETY Harvard Law School Harvard University 23 Everett St., 2nd Floor 23 Eerett St., 2nd Floor Cambridge, MA 02138 Cambridge, MA 02138 (617) 495-7547 (617) 495-7547 (617) 495-7641 (FAX) (617) 495-7641 (FAX) clinic@berkman.harvard.edu staff@dmlp.org Attorneys for amicus curiae Digital Media Law Project

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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations of Fed. R. App.

P. 32(a)(7)(B) because the brief contains 6,870 words, excluding the parts exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because the brief has been prepared in a proportionally spaced typeface using Microsoft Word in fourteen-point Times New Roman font.

Date: November 19, 2013

s/ Junis L. Baldon Junis L. Baldon Mark A. Flores Brandon W. Gearhart FROST BROWN TODD LLC 400 West Market Street, 32nd Floor Louisville, KY 40202 (502) 589-5400 (502) 581-1087 (FAX) jbaldon@fbtlaw.com mflores@fbtlaw.com bgearhart@fbtlaw.com ACLU of Kentucky Cooperating Attorneys

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CERTIFICATE OF SERVICE I hereby certify that on November 19, 2013, I electronically filed the foregoing with the Clerk of the U.S. Court of Appeals for the Sixth Circuit through the CM/ECF system, which will send a Notice of Electronic Filing to registered CM/ECF participants.

s/ Junis L. Baldon Junis L. Baldon Mark A. Flores Brandon W. Gearhart FROST BROWN TODD LLC 400 West Market Street, 32nd Floor Louisville, KY 40202 (502) 589-5400 (502) 581-1087 (FAX) jbaldon@fbtlaw.com mflores@fbtlaw.com bgearhart@fbtlaw.com ACLU of Kentucky Cooperating Attorneys

LOULibrary 0110802.0609352 1578366v1

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