Sinclair V Parisi: 60-MOTION For Summary Judgment by BARNES & NOBLE INC

Case 1:10-cv-00897-RJL Document 60 Filed 10/12/10 Page 1 of 40
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
)
DANIEL PARISI, WHITEHOUSE.COM INC., )
WHITEHOUSE NETWORK LLC AND )
WHITEHOUSE COMMUNICATIONS INC., )
)
Plaintiffs, )
) Case No.: 1:10-cv-00897 (RJL)
v. )
)
LAWRENCE W. SINCLAIR A/K/A “LARRY
SINCLAIR”, JEFFREY RENSE, BARNES & )
NOBLE, INC., BARNESANDNOBLE.COM )
LLC, AMAZON.COM, INC., BOOKS-A- )
MILLION, INC. and SINCLAIR )
PUBLISHING, INC., )
)
Defendants. )
DEFENDANTS’ BARNES & NOBLE, INC. AND

BARNESANDNOBLE.COM LLC’S MOTION FOR SUMMARY JUDGMENT
Defendants Barnes & Noble, Inc. and barnesandnoble.com llc (collectively, “Barnes &
Noble”), by and through their undersigned counsel and pursuant to FED. R. CIV. P. 56 and Local
Rule 7.1, hereby move for the entry of summary judgment in their favor and against plaintiffs
Daniel Parisi, Whitehouse.com Inc., Whitehouse Network LLC and Whitehouse
Communications Inc. (collectively, “Plaintiffs”), on all causes of action asserted in the
Complaint under the Communications Decency Act of 1996, 47 U.S.C. § 230, et seq., and,
independently, on Plaintiffs’ so-called right of publicity claim. In support of its motion, Barnes
& Noble relies on the Memorandum of Law and Statement of Undisputed Material Facts filed
herewith and the supporting declaration of David Bock (the “Bock Decl.”) and exhibits cited
therein.
PDF processed with CutePDF evaluation edition www.CutePDF.com

Dated: New York, New York

October 12, 2010
DAVIS WRIGHT TREMAINE, LLP
By: /s/ Linda Steinman

Linda Steinman (admitted pro hac vice)
John Rory Eastburg (D.C. Bar No. 984434)
1919 Pennsylvania Avenue, NW, Suite 800

Washington, D.C. 20006
Attorneys for Defendants Barnes & Noble, Inc, and

barnesandnoble.com llc
2

)
)
Plaintiff, )
) Case No.: 1:10-cv-00897 (RJL)
v. )
)
LAWRENCE W. SINCLAIR A/K/A “LARRY
SINCLAIR”, JEFFREY RENSE, BARNES & )
NOBLE, INC., BARNESANDNOBLE.COM )
LLC, AMAZON.COM, INC., BOOKS-A- )
MILLION, INC. and SINCLAIR )
PUBLISHING, INC., )
)
Defendants. )
MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF BARNES & NOBLE, INC. AND
BARNESANDNOBLE.COM LLC’S MOTION FOR SUMMARY JUDGMENT

(202) 973-4209
Attorneys for Defendants

Barnes & Noble, Inc, and barnesandnoble.com llc
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................1
STATEMENT OF UNDISPUTED FACTS.................................................................................2
A. Barnes & Noble Does Not Create or Develop Third-Party Content Provided
by Book Publishers or Printers and Posted on barnesandnoble.com ......................2
B. The Copy at Issue Was Created and Developed by a Third-Party Publisher..........5
ARGUMENT..............................................................................................................................7
I. STANDARD OF REVIEW..................................................................................7
II. PLAINTIFFS’ CLAIMS ARE BARRED BY SECTION 230 OF THE CDA .......8
A. Barnes & Noble is Entitled to Immunity Where Barnes & Noble

Was Both a User and Provider of an Interactive Computer Service .......11
B. Barnes & Noble is Entitled to Immunity Where Barnes & Noble

Was Not Responsible for the Creation or Development of the
Content at Issue......................................................................................13
C. Barnes & Noble Is Entitled to Immunity Because All of Plaintiffs’

Claims Seek to Hold it Liable as the Speaker or Publisher of Third-
Party Content .........................................................................................20
CONCLUSION.........................................................................................................................22
STATEMENT OF UNDISPUTED MATERIAL FACTS ................................................SUMF-1
i
TABLE OF AUTHORITIES
Page(s)
CASES
Barnako v. Foto Kirsch, Ltd., 13 Media. L. Rep. 2373 (D.D.C. 1987) .......................................22
Barnes v. Yahoo!. Inc.,

570 F.3d 1096 (9th Cir. 2009) .............................................................................................20
Barrett v. Rosenthal,
146 P.3d 510 (Cal. 2006).....................................................................................................13
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003), cert. denied, 541 U.S. 1085 (2004) ............................... passim
Ben Ezra, Weinstein and Co. Inc. v. America Online, Inc.,

206 F.3d 980 (10th Cir. 2000) ....................................................................................... 16, 19
* Blumenthal v. Drudge,
992 F. Supp. 44 (D.D.C. 1998) ..................................................................................... passim
* Carafano v. Metrosplash.com, Inc.,

339 F.3d 1119 (9th Cir. 2003) ...................................................................................... passim
Collins v. Purdue University,

703 F. Supp. 2d 862 (N.D. Ind. 2010)............................................................................ 12, 20
Crenshaw v. Georgetown Univ.,

23 F. Supp. 2d 11 (D.D.C. 1998), aff’d, 194 F.3d 173 (D.C. Cir. 1999) .................................7
Donato v. Moldow,
865 A.2d 711 (N.J. Superior Ct. 2005)..................................................................... 12, 13, 14
F.T.C. v. Accusearch, Inc.,

570 F.3d 1187 (10th Cir. 2009)............................................................................................14
Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,

521 F.3d 1157 (9th Cir. 2008) (en banc).................................................................... 8, 12, 15
* Gentry v. Ebay, Inc.,

99 Cal. App. 4th 816 (2002) .............................................................................. 12, 13, 17, 19
Goddard v. Google, Inc.,

640 F. Supp. 2d 1193 (N.D. Cal. 2009)............................................................................8, 15
ii
Lane v. Random House,

985 F. Supp. 141 (D.D.C. 1995) ..........................................................................................22
Laningham v. U.S. Navy,

813 F.2d 1236 (D.C. Cir. 1987) .............................................................................................7
Lerman v. Flynt Distributing Co.,

745 F.2d 123 (2d Cir. 1984) ..................................................................................................7
* Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

591 F.3d 250 (4th Cir. 2009) ................................................................................. 8, 9, 11, 20
Perfect 10, Inc. v. CCBill LLC,

488 F.3d 1102 (9th Cir. 2007) .............................................................................................21
Polsby v. Spruill,
25 Media L. Rep. 2259 (D.D.C. 1997), aff’d, 1998 WL 202285
(D.C. Cir. Mar. 11, 1998) ....................................................................................................22
* Ramey v. Darkside Productions, Inc.,

No. Civ. A. 02-730, 2004 WL 5550485 (D.D.C. May 17, 2004) ................................... passim
* Schneider v. Amazon.com, Inc.,

31 P.3d 37 (Wash. Ct. App. 2001) ................................................................................ passim
* Universal Comm. Systems, Inc. v. Lycos, Inc.,

478 F.3d 413 (1st Cir. 2007).............................................................................. 10, 11, 12, 13
Vassiliades v. Garfinckel’s, Brooks Bros.,

492 A.2d 580 (D.C. 1985) ...................................................................................................21
* Zeran v. America Online, Inc.,

129 F.3d 327 (4th Cir. 1997) ......................................................................................... 10, 17
STATUTES
42 U.S.C. § 3604(c) ..................................................................................................................15
Communications Decency Act of 1996 (“CDA”), 47 U.S.C. §230, et seq........................... passim
iii
PRELIMINARY STATEMENT
All of Plaintiffs’ claims against Defendants Barnes & Noble, Inc. and
barnesandnoble.com llc (collectively, “Barnes & Noble”) are barred by the Communications
Decency Act of 1996 (“CDA”), 47 U.S.C. §230, et seq. Plaintiffs contend they were defamed by
a book entitled Barack Obama & Larry Sinclair: Cocaine, Sex, Lies & Murder? (the “Book”),
which was written by defendant Lawrence W. Sinclair (“Sinclair”) and published by defendant
Sinclair Publishing, Inc. (“SPI”) (the “Sinclair Defendants”). Rather than merely suing the
Sinclair Defendants, Plaintiffs have named as defendants several booksellers, including Barnes
& Noble, and have alleged that Barnes & Noble engaged in “more than mere distribution” of the
Book by “the affirmative act of publi[shing]” certain allegedly false statements on
barnesandnoble.com on its display page for the Book under the headings “From the Publisher”
and “Synopsis.” (Cplt ¶ 39.)1
This content, upon which Plaintiffs’ claims turn, was not created or developed by Barnes
& Noble, but rather was provided to Barnes & Noble by Lightning Source, the print-on-demand
printer for the Book (who in turn likely obtained it from the Sinclair Defendants). Book
publishers and Lightning Source routinely provide online booksellers with descriptive text
regarding their books for posting on the booksellers’ retail websites, and do so via an electronic
file that is uploaded in an automated fashion. Such descriptive text is the internet equivalent of
book jacket copy.2
Plaintiffs’ claims are prohibited by Section 230 of the Communications Decency Act
(“CDA”), which “immunizes providers of interactive computer services from civil liability in
1
Citations to “Cplt.” are to the Complaint filed by Plaintiffs on May 28, 2010. [Dkt. No. 1].
2
Lightning Source and its parent corporation, Ingram Content Group Inc., have been named as
defendants in a related action captioned Parisi et al. v. Ingram Content Group Inc. and Lightning Source,
Inc., No. 10-cv-00974 (RJL), which is also pending before this Court.
1
tort with respect to material disseminated by them but created by others.” Blumenthal v. Drudge,
992 F. Supp. 44, 49 (D.D.C. 1998). Section 230 was specifically enacted by Congress to foster
the growth of the internet and e-commerce, and in recognition of the fact that requiring websites
to bear the risk of liability for content created by others would significantly impair the
development and benefits of the internet in broadly disseminating information. Because all of
Plaintiffs’ claims are an attempt to hold Barnes & Noble liable as the “publisher” of content
created by a third party, they must be dismissed in their entirety under § 230.
STATEMENT OF UNDISPUTED FACTS
A. Barnes & Noble Does Not Create or Develop Third-Party Content Provided by
Book Publishers or Printers and Posted on barnesandnoble.com
The facts are set forth in the Declaration of David Bock and Barnes & Noble’s Statement
of Undisputed Materials Facts (“SUMF”) and are briefly summarized herein. The facts relevant
and material to the instant motion are few, and much of the factual information provided is
described merely as background for the Court.
Barnes & Noble, Inc. is the parent company of Barnes & Noble Booksellers, Inc., one of
the nation’s largest retailers of books, eBooks, and related products, and barnesandnoble.com llc
(“B&N.com”). (SUMF ¶ 15.) B&N.com is the largest online retail bookseller in the United
States and offers approximately 6.8 million new books for sale on its website
www.barnesandnoble.com. (SUMF ¶ 17.) B&N.com also offers consumers information about
an additional 3.1 million used and out-of-print books, which are not available directly from
B&N.com, but can be purchased from third-party sellers. (Id.) Between their retail stores and
their online operations, Barnes & Noble sells approximately 300 million books per year. (SUMF
¶ 18.)
2
Barnes & Noble’s aim in developing the “book superstore” in the 1980’s and 1990’s and
in launching its website in 1997 has always been to provide a deep and diverse selection of book
titles for readers. (SUMF ¶ 19.) Although many of the books offered for sale on
barnesandnoble.com are published by mainstream trade publishers, barnesandnoble.com also
features numerous books published by smaller publishers. “Bestsellers account for less than 5%
of our sales and more than 50,000 small publishers and university presses are a growing
percentage of our business. We are committed to carrying a vast selection of titles from many
publishers, large and small.” (SUMF ¶ 20.)
Many small publishers take advantage of the “print-on-demand” technology offered by
Lightning Source and other “print-on-demand” printers, a relatively new technology that makes
it economical to print smaller runs of books. This is a burgeoning industry, and one which
permits a far broader range of voices to be heard in the marketplace of ideas. (SUMF ¶ 21.)
Barnes & Noble currently offers nearly 3.6 million print-on-demand books to consumers on
barnesandnoble.com. (Id.) Lightning Source is the leading provider of print-on-demand services
in the United States. (Id.) Barnes & Noble offers hundreds of thousands of different books from
Lightning Source, published by thousands of different publishers. (Id.)
B&N.com has a display page for each of the approximately 10 million books offered for
sale on its website. The display page for a given book provides consumers with content from
numerous sources. These may include: (i) descriptive content from the book’s publisher; (ii)
published reviews from publications such as The New York Times, Library Journal, and Kirkus
Reviews; and (iii) comments and reviews posted by readers. In limited instances, Barnes &
Noble itself will commission a review of a popular book, which is clearly identified as such
under the heading “From Barnes & Noble.” (SUMF ¶ 23; Bock Decl. Exs. A, B.)
3
Book publishers or Lightning Source send B&N.com and other online retailers
descriptive material about a book in a standard XML-based format known as an ONIX file,
which is used widely in the publishing industry. (SUMF ¶ 24.) This allows the publisher or
Lightning Source to specify the copy that should be displayed in various common informational
fields for online sales, such as the book’s title and author, and/or notes from the publisher. (Id.)
The publishers or Lightning Source provide both the text and the “commentary type” (e.g.,
synopsis, publisher information, excerpt) and B&N.com uses the commentary type to map to the
corresponding commentary type in its systems in an automated fashion. (SUMF ¶ 25.) An
ONIX file from a single publisher or Lightning Source may contain data for numerous books.
(SUMF ¶ 26.) On average, B&N.com receives data for tens of thousands of books from
Lightning Source each week. (Id.)
B&N.com uploads the electronic data directly from the ONIX file to its website in an
automated fashion after scanning for unrecognizable characters or other technical problems.
(SUMF ¶ 27.) Barnes & Noble generally does not perform any editorial review of the content
supplied by publishers or Lightning Source in the ONIX file prior to posting the data on
barnesandnoble.com.3 (Id.) Nor, as a practical matter, would it be possible for Barnes & Noble
to feasibly review the third-party content related to the approximately ten million offerings on its
website to determine if such content contained any false and defamatory statements. (SUMF ¶
29.) This would require an intensive factual investigation and legal analysis and would impose
3
If Barnes & Noble receives a complaint directed at specific third-party content on its website – such
as a user review – a junior-level Barnes & Noble employee in the Product Database Group will review the
content solely to determine if it complies with company policy, as set forth in the barnesandnoble.com
Terms of Use. (SUMF ¶ 28.) Although not material to this motion, the Sinclair Defendants contacted
Barnes & Noble on two occasions – once to ask that certain negative reviews be removed and once to ask
that certain additional reviews be added. (SUMF ¶ 42.) The former request was evaluated by a junior-
level employee in the Product Database Group who removed the reviews and comments that he believed
to be in violation of the barnesandnoble.com Terms of Use. (Id.) These requests did not relate to the
Plaintiffs or the Contested Copy. (Id.)
4
an insurmountable burden upon Barnes & Noble. (Id.) As a practical matter, any such
obligation would operate to the detriment of the book-buying public, by forcing Barnes & Noble
to substantially limit the number of books, and the amount and type of third-party content related
to those books, made available on barnesandnoble.com. (Id.)
B. The Copy at Issue Was Created and Developed by a Third-Party Publisher
The Book, Barack Obama & Larry Sinclair: Cocaine, Sex, Lies & Murder? by Lawrence
W. Sinclair, was printed by Lightning Source and first published in or around July 2009. (SUMF
¶ 31.) The Book was sold on barnesandnoble.com pursuant to B&N.com’s relationship with
Lightning Source, but was not stocked in Barnes & Noble retail stores.4 (SUMF ¶ 32.)
Plaintiffs’ claims against Barnes & Noble turn on two identical paragraphs on the
barnesandnoble.com display page for the Book, displayed under the headings “From the
Publisher” and “Synopsis.” (SUMF ¶ 34.) More specifically, these identical paragraphs
included a single sentence regarding Plaintiff, namely: “[y]ou’ll read how the Obama campaign
used internet porn king Dan Parisi and Ph.D. fraud Edward I. Gelb to conduct a rigged polygraph
exam in an attempt to make the Sinclair story go away” (the “Contested Copy”). (Cplt. ¶ 39;
SUMF ¶ 34.)
Barnes & Noble did not write the Contested Copy or contribute to it in any substantive
fashion. (SUMF ¶¶ 35-38.) Consistent with the industry practices described above, Barnes &
Noble received the Contested Copy from Lightning Source, the Sinclair Defendants’ print-on-
4
Consumers can purchase books sold on barnesandnoble.com either by placing an order online or by
processing the online order through their local bookstore. (SUMF ¶ 18.) While not material to this
motion, the instructions for submission of a book to Barnes & Noble by small publishers that Plaintiffs
cite in the Complaint at ¶ 40 apply only to small publishers who seek to have their book stocked in Barnes
& Noble’s retail stores (SUMF ¶ 22) and thus are inapposite. Barnes & Noble has no records indicating
that the Sinclair Defendants sought to have the Book placed in the Barnes & Noble retail bookstores.
(SUMF ¶ 32.)
5
demand printer, on July 1, 2009 via an ONIX file. (SUMF ¶ 33.)5 The ONIX file also contained
information related to a number of other Lightning Source titles. (Id.) Barnes & Noble then
posted the above-described Contested Copy in an automated fashion on barnesandnoble.com,
under the headings “Synopsis” and “From the Publisher.” (SUMF ¶ 34.) In accordance with its
usual and customary business practices, Barnes & Noble did not review or edit the “From the
Publisher” or “Synopsis” fields for the Book prior to posting them to barnesandnoble.com. (Id.)
The Contested Copy that appeared on the Barnes & Noble website is identical to the Copy
provided by Lightning Source (Id.), and was also identical to the copy posted by the other
bookseller defendants in this case and cited in the Complaint. (See Cplt. ¶¶ 35-36; 38.) Needless
to say, Barnes & Noble does not do anything to encourage publishers or Lightning Source to
provide it with false or defamatory content for its website. (SUMF ¶¶ 30; 38.)
Barnes & Noble did not receive any complaints related to the Contested Copy regarding
Mr. Parisi, including from Plaintiffs. (SUMF ¶ 40.) Although the Book was published in July
2009, Plaintiffs did not contact Barnes & Noble regarding the Contested Copy until May, 2010,
shortly before filing suit. (Id.)
On May 28, 2010, Plaintiffs filed this lawsuit against Lawrence Sinclair, Sinclair
Publishing, Inc., Jeffrey Rense, Barnes & Noble, Inc., B&N.com, Amazon.com, Inc., and Books-
A-Million, Inc., asserting the following claims against all defendants: (1) Libel Per Se/Libel, (2)
False Light Invasion/Misappropriation of Privacy, (3) Business Disparagement, (4) Tortious
Interference with Economic Advantage, and (5) Civil Conspiracy. On June 17, 2010, Barnes &
Noble ceased distributing the Book. The Barnes & Noble defendants filed an answer on August
5
It is Barnes & Noble’s understanding that the Sinclair Defendants provided the Contested Copy to
Lightning Source, which then incorporated it into the ONIX file sent to retailers. (SUMF ¶ 33.)
6
24, 2010, annexing a printout of the relevant ONIX file establishing that the Contested Copy was
supplied by Lightning Source.
ARGUMENT
Plaintiffs’ complaint against Barnes & Noble must be dismissed under Section 230 of the
Communications Decency Act. While Plaintiffs affix various labels to their claims, the
gravamen of their Complaint is that Barnes & Noble engaged in “more than mere distribution” of
the Book by “the affirmative act of publi[shing]” allegedly false copy regarding Plaintiffs on the
display page for the Book on barnesandnoble.com under the headings “From the Publisher” and
“Synopsis.” (Cplt. ¶ 39.) It is not surprising that Plaintiffs make this copy on
barnesnadnoble.com the lynchpin of their claims, since, to our knowledge, no court has ever held
a bookseller liable for mere distribution of a book, given the fear of turning booksellers into
censors and the attendant harm to First Amendment interests. See, e.g., Lerman v. Flynt
Distributing Co., 745 F.2d 123, 129 (2d Cir. 1984). As set forth below, under Section 230 the
Contested Copy cannot form the basis for liability where the undisputed facts show that Barnes
& Noble is an interactive computer service provider and was not responsible, in whole or in part,
for the creation or development of the allegedly libelous content displayed on its website.
I. STANDARD OF REVIEW
Motions for summary judgment are properly granted when the record demonstrates that
“there is no genuine issue as to any material fact” and, on that materially undisputed record, the
“movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). The nonmoving party
has the affirmative duty “to provide evidence that would permit a reasonable jury to find” in its
favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987); see also Crenshaw v.
Georgetown Univ., 23 F. Supp. 2d 11, 15 (D.D.C. 1998) (stating that the “adverse party must do
7
more than simply show there is some metaphysical doubt as to the material facts”), aff’d, 194
F.3d 173 (D.C. Cir. 1999).
Courts widely recognize that claims implicating § 230 should be resolved by early
dispositive motions. As the Fourth Circuit recently held:
Section 230 immunity, like other forms of immunity, is generally accorded

effect at the first logical point in the litigation process. As we have often
explained in the qualified immunity context, “immunity is an immunity
from suit rather than a mere defense to liability” and “it is effectively lost
if a case is erroneously permitted to go to trial.” We thus aim to resolve
the question of § 230 immunity at the earliest possible stage of the case
because that immunity protects websites not only from “ultimate liability,”
but also from “having to fight costly and protracted legal battles.”
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254-55 (4th Cir. 2009); see
also Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157,
1174-75 (9th Cir. 2008) (en banc) (stating that even “close cases .... must be resolved in favor of
immunity, lest we cut the heart out by forcing websites to ... fight[ ] off claims that they
promoted or encouraged – or at least tacitly assented to – the illegality of third parties ….
[S]ection 230 must be interpreted to protect websites not merely from ultimate liability, but from
having to fight costly and protracted legal battles”); Goddard v. Google, Inc., 640 F. Supp. 2d
1193, 1202 (N.D. Cal. 2009) (noting that “the Ninth Circuit implicitly has identified a special
form of prejudice to defendants who improperly are denied early dismissal of claims falling
within the zone of CDA immunity” and dismissing claims under Rule 12(b)(6)).6
II. PLAINTIFFS’ CLAIMS ARE BARRED BY SECTION 230 OF THE CDA
Section 230 of the CDA immunizes internet service providers and users, like Barnes &
Noble, from claims that seek to hold them liable as the publisher or distributor of third party
6
Barnes & Noble has limited this early summary judgment motion to § 230 immunity, which presents
a fundamental legal issue that can be resolved by the Court without discovery. In the event that the Court
denies this motion in whole or in part, Barnes & Noble reserves the right to file a subsequent motion for
summary judgment, if necessary, based on its other defenses and/or on § 230.
8
content. It provides that, “[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.” 47 U.S.C. § 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.”
Thus, courts uniformly hold that, “[b]y its plain language, § 230 creates a federal
immunity to any cause of action that would make service providers liable for information
originating with a third-party user of the service. Specifically, § 230 precludes courts from
entertaining claims that would place a computer service provider in a publisher’s role. 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.” Blumenthal v. Drudge, 992 F. Supp. 44, 50 (D.D.C. 1998) (quoting Zeran v. America
Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)); see also Nemet Chevrolet, 591 F.3d at 254-60;
Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003). As this Court explained in
Blumenthal:
While various policy options were open to the Congress, it chose to

“promote the continued development of the Internet and other interactive
computer services and other interactive media” and “to preserve the
vibrant and competitive free market” for such services, largely “unfettered
by Federal or State regulation . . .” [citation omitted]. Whether wisely or
not, it made the legislative judgment to effectively immunize providers of
interactive computer services from civil liability in tort with respect to
material disseminated by them but created by others. In recognition of …
the near impossibility of regulating information content, Congress decided
not to treat providers of 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 or
distributing obscene or defamatory material written or prepared by others.
While Congress could have made a different policy choice, it opted not to
hold interactive computer services liable for their failure to edit, withhold
or restrict access to offensive material disseminated through their medium.
9
Id. at 49 (emphasis added).
Numerous courts have noted that § 230 evinces Congress’s desire to promote the growth
of the internet, including e-commerce. As the Ninth Circuit stated in Batzel v. Smith, 333 F.3d
1018, 1027 (9th Cir. 2003), cert. denied, 541 U.S. 1085 (2004), Congress intended Section 230
“to encourage the unfettered and unregulated development of free speech on the Internet, and to
promote the development of e-commerce.” See also Blumenthal, 992 F. Supp. at 48 (“As
Congress recognized in the [CDA], ‘the rapidly developing array of Internet and other interactive
computer services … represent an extraordinary advance in the availability of … informational
resources to our citizens’”); 47 U.S.C. § 230(b)(2). As many of these cases have recognized, the
imposition of liability on websites such as Barnes & Noble for false content provided by third
parties would impose an impossibly onerous burden of review, leading them to severely restrict
the amount and nature of content of their websites – and thus detract from the vibrancy of the
internet. See Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997) (“Faced with
potential liability for each message republished by their services, interactive computer service
providers might choose to severely restrict the number and type of messages posted. Congress
considered the weight of the speech interests implicated and chose to immunize service providers
to avoid any such restrictive effect.”); Ramey v. Darkside Productions, Inc., No. Civ. A. 02-730,
2004 WL 5550485 at *5-6 (D.D.C. May 17, 2004) (applying above-quoted passage from Zeran
to on-line advertising guide for adult entertainment services); Universal Comm. Systems, Inc. v.
Lycos, Inc., 478 F.3d 413, 418-19 (1st Cir. 2007) (noting the “obvious chilling effect that such
intermediary tort liability could have, given the volume of material communicated through such
intermediaries, [and] the difficulty of separating lawful from unlawful speech”).
10
A defendant must prove only three elements to qualify for immunity under § 230.
Immunity is granted where (i) the defendant is a provider or user of an interactive computer
service; (ii) the content at issue is information provided by another information content provider;
and (iii) the plaintiff’s claims seek to treat the defendant as a publisher or speaker of third party
content. See, e.g., Universal Comm. Sys., 478 F.3d at 418; Batzel, 333 F.3d at 1028-30.
Moreover, “[t]o further the policies underlying the CDA, courts have generally accorded § 230
immunity a broad scope.” Nemet, 591 F.3d at 254; Universal Comm. Sys., 478 F.3d at 418
(courts “have generally interpreted Section 230 immunity broadly”). An examination of these
three elements reveals that Barnes & Noble is clearly entitled to Section 230 immunity from all
of Plaintiffs’ claims.
A. Barnes & Noble is Entitled to Immunity Where Barnes & Noble

Was Both a User and Provider of an Interactive Computer Service
The first element of immunity is met here since Barnes & Noble is a provider of an
interactive computer service as defined by the statute. An “interactive computer service” is “any
information service, system, or access software provider that provides or enables computer
access by multiple users to a computer server.” 47 U.S.C. § 230(f)(2). As this Court has
recognized, “Circuit courts treat ‘§230 immunity as quite robust, adopting a relatively expansive
definition of ‘interactive computer service ….’” Ramey, 2004 WL 5550485, at *7 (citing
Carafano, 339 F.3d at 1123). In Plaintiffs’ Opposition to Books-A-Million’s Motion to Dismiss
in this case, Plaintiffs essentially concede that Books-A-Million, another internet bookseller of
the Book, is a provider of an interactive computer service under § 230. (Doc. No. 43, Opp.
Mem. at 17-21.)
In the closely analogous case of Schneider v. Amazon.com, Inc., 31 P.3d 37 (Wash. Ct.
App. 2001), the Washington court easily concluded that Amazon.com – another direct
11
competitor to B&N.com in the online sale of books – qualified as an interactive service provider
entitled to immunity. The court held that interactive web site operators qualify as “interactive
computer services” under § 230 and that the statute is not limited to those providing access to the
internet. Schneider, 31 P.3d at 40 (“Amazon’s web site enables visitors to the site to comment
about authors and their work, thus providing an information service that necessarily enables
access by multiple users to a server.”). More broadly, courts have recognized that websites
qualify as an “interactive computer service.” See, e.g., Universal Commc’ns Sys., 478 F.3d at
419 (“[W]eb site operators ... are providers of interactive computer services” because “[a] web
site … enables computer access by multiple users to a computer server, namely, the server that
hosts the web site.” (internal quotation marks omitted)); Collins, 2010 WL 1250916, at *13
(“Although much of the initial CDA immunity was granted to internet service providers like
AOL, Collins incorrectly asserts that the immunity ends with such providers. For example, there
are many cases holding that websites are under the umbrella of protection of § 230(c)(1).”);
Gentry v. Ebay, Inc., 99 Cal. App. 4th 816, 831 n.7 (Ct. of Appeal 2002) (“[T]he allegations of
the … complaint indicate eBay’s Web site enables users to conduct sales transactions, as well as
provide information (feedback) about other users of the service. In this way, eBay provides an
information service that enables access by multiple users to a computer server and brings it
within the broad definition of interactive computer service provider.”).7
Thus, Barnes & Noble, as an online book vendor, qualifies as an interactive computer
service provider on multiple grounds. Barnesandnoble.com provides computer access to
7
See also Fair Housing Council, 521 F.3d at 1162 n. 6 (“Today, the most common interactive
computer services are websites”); Carafano, 339 F.3d 1119 (extending § 230 immunity to subscription-
based dating website); Ramey, 2004 WL 5550485 (extending § 230 immunity to website that received
payment from advertisers to post their adult entertainment advertisements); Donato v. Moldow, 865 A.2d
711, 718 (N.J. Superior Ct. 2005) (“Website operators are also included [in the definition of “interactive
computer service.”).
12
multiple third parties, including publishers and independent reviewers, who are able to include
informational content on its website. It also “enables visitors to the site to comment about
authors and their work, thus providing an information service that necessarily enables access by
multiple users to a server.” Schneider, 31 P.3d at 40. It also “enables users to conduct sales
transactions” over the internet. Gentry, 99 Cal. App. 4th 816, 831 n.7. Even more
fundamentally, as a classic website and online retailer, it “enables computer access by multiple
users to a computer server, namely, the server that hosts the web site.” Universal Commc’ns
Sys., 478 F.3d at 419.8
B. Barnes & Noble is Entitled to Immunity Where Barnes & Noble Was
Not Responsible for the Creation or Development of the Content at Issue
As for the second element, Barnes & Noble qualifies for immunity under § 230 since it
was not the “information content provider” of the specific content at the center of Plaintiffs’
claims that Barnes & Noble is liable because it engaged in “more than mere distribution of the
Book” (Cplt. ¶39) – i.e., the content posted under the “From the Publisher” and “Synopsis”
headings, which was supplied by Lightning Source (and apparently written by the Sinclair
Defendants). The CDA defines the term “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. § 230(f)(3).
Consistent with the “robust” protection provided by § 230, courts have adopted a “relatively
8
Barnes & Noble is also, unquestionably, a “user” of an “interactive computer service” within the
meaning of Section 230. See, e.g., Batzel, 333 F.3d at 1030 (the question of whether a website fits the
definition of an “interactive computer service” need not be answered because the “language of § 230
(c)(1) confers immunity not just on ‘providers’ of such services, but also on ‘users’ of such services.”)
The cases establish that Barnes & Noble falls into this category merely by using an internet service
provider (“ISP”) to post content on barnesandnoble.com. For purposes of the CDA, a “user” is “anyone
using an interactive computer service.” Barrett v. Rosenthal, 146 P.3d 510, 528 (Cal. 2006) (defendant
who used Internet to gain access to newsgroups where she posted third party’s article was a “user” under
CDA); see also Donato, 865 A.2d at 718 (first prong is satisfied under either of two rationales: as the
“provider” of the website, or as the “user” of the ISP).
13
restrictive definition of “information content provider.” Carafano, 339 F.3d at 1123 (emphasis
added); see also Blumenthal, 992 F. Supp. at 52-53; Ramey, 2004 WL 5550485, at *7. Further,
the immunity will apply so long as the defendant was not the content provider with respect to the
specific statements at issue. Carafano, 339 F.3d at 1123 (“Under the statutory scheme, an
‘interactive computer service’ qualifies for immunity so long as it does not also function as an
‘information content provider’ for the portion of the statement or publication at issue.”); F.T.C.
v. Accusearch, Inc., 570 F.3d 1187, 1198 (10th Cir. 2009) (same).
In keeping with the restrictive reading given to “information content provider,” courts
generally hold that the only the party responsible for the creation of content is its author. See,
e.g., Batzel, 333 F.3d at 1031 (party who “composed” email was the one who created it).
Likewise, “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.”
Accusearch, 570 F.3d at 1199 (emphasis added). As the Tenth Circuit reasoned:
In this context – responsibility for harm – the word responsible

ordinarily has a normative connotation. … Synonyms for
responsibility in this context are blame, fault, guilt, and culpability.
Accordingly, to be “responsible” for the development of offensive
content, one must be more than a neutral conduit for that content. 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 (as would be the case with the typical Internet bulletin board).
… This construction of the term responsible comports with the clear
purpose of the CDA – to encourage Internet services that increase the
flow of information by protecting them from liability when
independent persons negligently or intentionally use those services to
supply harmful content.
Id. at 1198-1199 (internal citations omitted) (emphasis added); see also Donato, 865 A.2d at
726-77 (“Development requires material substantive contribution to the information that is
ultimately published. Deleting profanity, selectively deleting or allowing to remain certain
postings, and commenting favorably or unfavorably on some postings, without changing the
14
substance of the message authored by another, does not constitute “development” within the
meaning of § 230(f)(3).”); Fair Housing Council, 521 F.3d at 1175 (“The message to website
operators is clear: If you don’t encourage illegal content, or design your website to require users
to input illegal content, you will be immune.”).9 As the court recently explained in Goddard v.
Google, Inc.:
[A] website operator does not become liable as an ‘information content

provider’ merely by “augmenting the content [of online material]
generally. Rather, [t]he website must contribute “materially … to its
alleged unlawfulness.’ A website does not so ‘contribute’ when it merely
provides third parties with neutral tools to create web content, even if the
website knows that the third parties are using such tools to create illegal
content.
640 F. Supp. 2d at 1196-97 (quoting Fair Housing Council, 521 F.3d at 1167-68; 1169 &
n. 24).10
Likewise, § 230 provides “immunity even where the interactive service provider has an
active, even aggressive role in making available content prepared by others.” Blumenthal, 992 F.
9
This case is a far cry from Fair Housing Council, where the Ninth Circuit found that Roommates.com
was not entitled to § 230 immunity because it “require[d] the use of discriminatory criteria” as a
precondition to use of its internet service by necessitating that users answer a questionnaire regarding
their sex, family status and sexual orientation, 521 F.3d at 1169, “induc[ed] third parties to express illegal
preferences,” id. at 1165, “‘unlawfully caus[ed]’ subscribers to make a ‘statement ... with respect to the
sale or rental of a dwelling that indicates [a] preference, limitation, or discrimination,’ in violation of 42
U.S.C. § 3604(c),” id. at 1165, and actively limited access to housing listings based on the discriminatory
preferences it elicited from users. Id. at 1169-70. Notably, the Ninth Circuit found that Roommates.com
was entitled to § 230 immunity in instances where it merely encouraged users to provide additional
information, even if the information that was ultimately provided was discriminatory.
10
The Ninth Circuit in Fair Housing Council made clear the high level of participation required to
constitute an “information content provider” by distinguishing the facts before it from Carafano: “The
allegedly libelous content [in Carafano] – the false implication that Carafano was unchaste – was created
and developed entirely by the malevolent user, without prompting or help from the website operator. To
be sure, the website provided neutral tools, which the anonymous dastard used to publish the libel, but the
website did absolutely nothing to encourage the posting of defamatory content …. The claim against the
website was, in effect, that it failed to review each user-created profile to ensure that it wasn’t defamatory.
That is precisely the kind of activity for which Congress intended to grant absolution with the passage of
section 230. With respect to the defamatory content, the website operator was merely a passive conduit
and thus could not be held liable for failing to detect and remove it.” Fair Housing Council, 521 F.3d at
1171-72.
15
Supp. at 52. In the Blumenthal case, AOL had a license agreement with Matt Drudge to provide
the “Drudge Report” for AOL. AOL paid Drudge $36,000 a year – Drudge’s sole consistent
source of income. Id. at 51. Further, under the terms of the license agreement, AOL was entitled
to require reasonable changes to the Drudge Report to the extent such content would, in its own
judgment, adversely affect operations of the AOL network. Additionally, AOL knew exactly the
type of gossip and rumor that would be provided in the Drudge Report and sought to lure
potential AOL subscribers by issuing a press release stating that, “’AOL has made Matt Drudge
instantly accessible to members who crave instant gossip and news breaks.’” Id. Nonetheless,
despite this active role and the direct financial benefit to AOL, this court held that AOL was
immune from suit under § 230 for claims related to the Drudge Report.
Similarly, in Ramey, this court held that the adult entertainment advertising website was
not an “information content provider” although it printed its website address on every
advertisement on its website, placed a watermark on all photos in those advertisements,
categorized each advertisement by subject matter, and was paid by the advertisers. 2004 WL
5550485, at *7. None of these facts altered the basic reality that the ads were composed by a
third party. Id.; see also Schneider, 31 P.3d at 42 (online bookseller Amazon immune even
where Amazon “had the right to edit the posting” and “claim[ed] licensing rights in the posted
material”); Ben Ezra, Weinstein and Co. Inc. v. America Online, Inc., 206 F.3d 980, 985 (10th
Cir. 2000) (AOL immune even where AOL allegedly played a role in the development of online
stock quotation information by removing inaccurate content and communicating with content
providers every time an error came to its attention).
Finally, as suggested above, the fact that a website has reviewed or edited third-party
content does not deprive it of immunity under § 230. Batzel, 333 F.3d at 1031 (“a central
16
purpose of the Act was to protect from liability service providers and users who take some
affirmative steps to edit the material posted.”). Nor is a website deprived of immunity if it failed
to conduct any inquiry into the information’s veracity, even in the face of strong signals that the
content might be false. As this court stated in Blumenthal: “In view of this statutory language,
plaintiffs’ argument that the Washington Post would be liable if it had done what AOL did here –
‘publish Drudge's story without doing anything whatsoever to edit, verify, or even read it
(despite knowing what Drudge did for a living and how he did it)’ – has been rendered irrelevant
by Congress.” 992 F. Supp. at 49; see also Zeran, 129 F.3d at 330 (claim that AOL failed to
remove a posting after it knew of the message’s false and defamatory character is barred by
§ 230); Gentry, 99 Cal. App. 4th at 835.
Applying this caselaw, it is clear from the undisputed facts that Barnes & Noble is not
“responsible, in whole or in part, for the creation or development of” the allegedly false
statements regarding Plaintiffs under § 230. Barnes & Noble did not author the content posted
under the “From the Publisher” or “Synopsis” headlines. Rather, as is established by the
declaration of David Bock and the print-out of the ONIX file from Lightning Source to Barnes &
Noble annexed to Barnes & Noble’s Answer, the allegedly false content was sent to Barnes &
Noble by Lightning Source. Barnes & Noble merely uploaded the content from Lightning
Source onto its website, as is its practice with the approximately ten million books sold on
barnesandnoble.com. The declaration of David Bock and the ONIX file make it abundantly clear
that Barnes & Noble played no role in the development of the content, which was posted without
any substantive alteration on barnesandnoble.com. The fact that this exact same content also
appears on the Books-A-Million and Amazon websites further establishes that it was created by
Lightning Source or Sinclair/SPI. Plaintiffs themselves acknowledged in the Complaint they
17
filed in Parisi et al. v. Ingram Content Group Inc. and Lightning Source, Inc. (No. 10-cv-00974)
(the “Ingram Cplt.”), that “Ingram and Lightning distribute[d] Sinclair's defamatory book and
promotional materials to third-parties, including sellers” (see Ingram Cplt. ¶ 29; see also id. ¶ 35
(“Ingram and Lightning wrote, distributed and/or published the above-described promotional
statements”); id. ¶ 33 (noting that the copy written and distributed by Lightning Source included
the Copy posted on Barnes & Noble’s website.)11 Finally, Plaintiffs do not, and could not, allege
that Barnes & Noble actively encourages publishers or other third-party content providers to
create or develop false and libelous book descriptions.
In Plaintiffs’ opposition to Books-A-Million’s (“BAM”) motion to dismiss, Plaintiffs
argued that, “[e]ven assuming arguendo that a third party wrote the product description, BAM
adopted it as its own to advertise and promote the sale of Sinclair’s book by BAM” because,
“[t]he product description used by BAM does not suggest that it was authored by Sinclair, SPI or
anyone else.” On this basis, Plaintiffs argued that the online bookseller qualifies as an
“information content provider.” (Doc. No. 43, Opp. Mem. at 20.) Any such argument is
directly contrary to the statute. Plaintiffs have not cited to any cases in which the way that the
content was labeled – as opposed to who created or developed it – was determinative of the issue
of immunity. The plain language of § 230 imposes no such requirement, and courts throughout
the country have made clear that, in light of the “quite robust” immunity desired by Congress,
“information content provider” should be given a “relatively restrictive definition.” Ramey, 2004
WL 5550485, at *7 (citing Carafano, 339 F.3d at 1123). If Congress had intended to condition
immunity under the CDA on the labeling used, it would have written this into the statute – and it
11
Thus, Barnes & Noble’s role was far less significant than that of the defendant in Carafano, where the
Ninth Circuit held that soliciting data through a questionnaire did not constitute “a significant role in
creating, developing or ‘transforming’ the relevant information.” Id
18
did not. See Ben Ezra, 206 F.3d at 984 (“[W]here [Congress]’ will has been expressed in
reasonably plain terms, that language must ordinarily be regarded as conclusive.”). Further,
imposing such a restriction would be incompatible with the goals of the CDA, because it would
require internet service providers to examine every piece of third-party content sent to them for
their websites to ensure that it was properly labeled as emanating from a third party. In any case,
Barnes & Noble posted the allegedly false statements at issue under the heading “From the
Publisher”, which could not be any clearer about its source, and the text under the heading
“Synopsis” was identical to that found under “From the Publisher.”
In short, for these several reasons, Plaintiffs’ argument that the booksellers somehow
“adopted” the allegedly false “product descriptions” gets them nowhere. See Gentry, 99 Cal.
App. 4th at 832-33 (Any attempt to “hold[] eBay [liable under a state statute] when it merely
made the individual defendant’s false product descriptions available to other users on its
Website … puts eBay in the shoes of the individual defendants, making it responsible for their
publications or statements … [in a manner] inconsistent with Section 230.”). The undisputed
facts show that Barnes & Noble was not “responsible, in whole or in part, for the creation or
development of the content” at issue under the plain terms of § 230 and their construction under
the governing caselaw.12
12
Even assuming, arguendo, that Plaintiffs had sued Barnes & Noble for its mere distribution of the
Book, Section 230 also immunizes Barnes & Noble from suit for its mere distribution of the Book
through its website for the reasons set forth in Defendant Amazon.com, Inc.’s Memorandum of Points
and Authorities In Support of Motion for Summary Judgment [Dkt. No. 53], incorporated by reference
herein. Barnes & Noble did not create or develop the Book, which was authored and published by the
Sinclair Defendants, and the internet sales of the Book constitute “information provided through the
Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3).
19
C. Barnes & Noble Is Entitled to Immunity Because All of Plaintiffs’ Claims

Seek to Hold it Liable as the Speaker or Publisher of Third-Party Content
As for the third factor, there can be no dispute that all of Plaintiffs’ claims seek to treat
Barnes & Noble as the publisher or speaker of the third-party content at issue as the premise of
liability. See 47 U.S.C. §§ 230(c)(1), (e)(3); see, e.g., Cplt ¶ 39 (alleging that Barnes & Noble
“published” the information provided by Lightning Source on its website); id. ¶ 45 (“The
defamatory statements were made and published by defendants …”). All of the claims seeks to
make Barnes & Noble liable for the content of the allegedly false statements. Thus, Barnes &
Noble has established the third element of Section 230 immunity.
Section 230 represents a complete bar to all of Plaintiffs’ assorted claims: libel per
se/libel, false light invasion/misappropriation of privacy, business disparagement, tortuous
interference with economic advantage, and civil conspiracy. Numerous decisions have held that
any tort claim arising out of third-party content, regardless of the name it is given, is barred by
Section 230. As the Ninth Circuit explained in detail:
[W]hat matters is not the name of the cause of action – defamation versus
negligence versus intentional infliction of emotional distress – what
matters is whether the cause of action inherently requires the court to treat
the defendant as the ‘publisher or speaker’ of content provided by another.
To put it another way, courts must ask whether the duty that the plaintiff
alleges the defendant violated derives from the defendant's status or
conduct as a ‘publisher or speaker.’ If it does, section 230(c)(1) precludes
liability.
Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101-02 (9th Cir. 2009); see also Collins v. Purdue
University, 703 F. Supp. 2d 862, 876-78 (N.D. Ind. 2010) (finding that § 230 barred false light
claims arising out of third-party content posted by defendant); Barnes, 570 F.3d at 1101
(identifying fraud, negligent misrepresentation, ordinary negligence, false light, and “negligent
publication of advertisements that cause harm to third parties,” as claims which may be barred by
§ 230); Schneider, 31 P.3d at 41-42 (stating that § 230 applies to tort claims and any other civil
20
action seeking to treat defendant as the “publisher or speaker” of third-party content); Nemet
Chevrolet, 591 F.3d at 251 (holding that CDA immunity applied to claims of defamation and
tortious interference with business expectancy). Thus, Plaintiffs may not do an end-run around §
230’s immunity provisions by affixing different names to their claims.
Plaintiffs may attempt to avoid the bar imposed by § 230 by recharacterizing the false
light claim pled in their Complaint as a right of publicity claim, as they did in response to
defendant Books-A-Million’s motion to dismiss, and arguing that such claims fall within the
limited carve-out from § 230 immunity set forth in § 230(e). (Doc. No. 43.) Plaintiffs’ argument
should be rejected on a number of grounds including the following.
First, Plaintiffs never pled a right of publicity claim; rather, in a confusing fashion,
Plaintiffs pled a claim labeled “False Light Invasion/Misappropriation of Privacy,” which only
set forth the elements of a false light claim – a claim distinct from a right of publicity or
misappropriation claim. Plaintiffs’ Complaint never pleads the elements of a right of publicity
claim, i.e., (i) a misappropriation of plaintiff’s identity or persona (ii) for the use or benefit of the
defendant. Vassiliades v. Garfinckel’s, Brooks Bros., 492 A.2d 580, 587 (D.C. 1985).
Second, the Ninth Circuit has held that the limited carve-out from Section 230 immunity
applies only to federal intellectual property claims. Perfect 10, Inc. v. CCBill LLC, 488 F.3d
1102, 1119 (9th Cir. 2007). A separate act, the Digital Millennium Copyright Act, governs the
slightly more restricted immunity provided to internet service providers faced with copyright
claims.
Third, any right of publicity claim would fail as a matter of law and thus should be
dismissed. As an initial matter, the Complaint does not allege that Barnes & Noble derived a
commercial benefit from exploiting Mr. Parisi’s name or persona, which in this context requires
21
a showing that the defendants purposefully used plaintiff’s name to benefit from his reputation or
notoriety.13 Even more critically, the use of Parisi’s name would fall within the newsworthiness
and incidental use exceptions set forth by this Court in Lane v. Random House, 985 F. Supp. 141
(D.D.C. 1995). “The newsworthiness privilege applies to advertisements for books, films, and
other publications concerning matters of public interest. A plaintiff cannot recover for
misappropriation based upon the use of his identity or likeness in a newsworthy publication
unless the use has ‘no real relationship’ to the subject matter of the publication.” Lane, 985 F.
Supp. at 146. Like the plaintiff in Lane, Parisi chose to embroil himself in the public controversy
related to Sinclair and the Obama campaign that forms the basis for Sinclair’s Book (see Cplt.
¶¶ 23-28; SUMF ¶¶ 5-10), and “[i]t is too late for him to retreat to the sidelines.” Id. Likewise,
the use of Mr. Parisi’s name in the promotional materials for a book is protected by the incidental
use exception: “A person's name or likeness is not appropriated by mere mention of it, or by
reference to it in connection with legitimate mention of his public activities.” Lane, 985 F. Supp.
at 147 (internal quotations omitted) (“The fact that the defendant is engaged in the business of
publication ... out of which he makes or seeks to make a profit, is not enough to make the
incidental publication a commercial use of name or likeness.”). Thus, any misappropriate claim
must be dismissed under settled law.
CONCLUSION
For all the reasons set forth herein, Barnes & Noble, Inc. and Barnes & Noble.com LLC
respectfully requests that the Court grant its motion for summary judgment, dismissing the
13
Polsby v. Spruill, 25 Media L. Rep. 2259, 2263 (D.D.C. 1997), aff’d, 1998 WL 202285 (D.C. Cir.
March 11, 1998) (plaintiffs must establish that defendant “used the name or likeness for the express
purpose of appropriating the commercial benefit that is particularly associated with the name or likeness
of the plaintiff,” “the public interest in the plaintiff or from any other value associated with the plaintiff's
name or likeness.”); see also Barnako v. Foto Kirsch, Ltd., 13 Media. L. Rep. 2373, 2375 (D.D.C. 1987).
22
Complaint with prejudice in its entirety; and (ii) grant any additional relief, including attorneys’
fees and costs, which this Court may deem just and proper.
Dated: October 12, 2010
Respectfully submitted,

Attorneys for Defendants Barnes & Noble, Inc,

and barnesandnoble.com llc
23


)
Plaintiffs, )
) Case No.: 1:10-cv-00897 (RJL)
v. )
)
LAWRENCE W. SINCLAIR A/K/A
“LARRY SINCLAIR”, JEFFREY RENSE, )
BARNES & NOBLE, INC., )
BARNESANDNOBLE.COM LLC, )
AMAZON.COM, INC., BOOKS-A-MILLION, )
INC. and SINCLAIR PUBLISHING, INC., )
)
Defendants. )
)
BARNES & NOBLE, INC. AND BARNESANDNOBLE.COM LLC’S

STATEMENT OF UNDISPUTED MATERIAL FACTS
Defendants Barnes & Noble, Inc. and barnesandnoble.com llc (collectively, “Barnes &
Noble”), by and through their undersigned counsel and pursuant to Local Civil Rules 7(h),
respectfully submit the following statement of material facts as to which there is no genuine
dispute in support of their contemporaneously filed motion for summary judgment.
A. THE PARTIES
Plaintiffs
1. Plaintiff Daniel Parisi (“Parisi”) is a citizen of New Jersey. (Cplt. ¶ 1.)1
2. Plaintiff Whitehouse.com Inc. is a New Jersey corporation with its principal place
of business in Wayne, New Jersey. (Cplt. ¶ 2.)
1
Citations to “Cplt.” are to the Complaint filed by Plaintiffs on May 28, 2010. [Dkt.
No. 1].
3. Plaintiff Whitehouse Network LLC (“WN”) is a New Jersey corporation with its
principal place of business in Wayne, New Jersey. (Cplt. ¶ 3.)
4. Plaintiff White House Communications Inc. (“WHCI”) is a Panama corporation
with its principal place of business in Panama and owns the domain name whitehouse.com.
(Cplt. ¶¶ 4, 17.)
5. In 2008, efforts were underway by Plaintiffs to develop Whitehouse.com into a
politically-oriented website. (Cplt. ¶ 17).
6. In or about February 2008, as part of his effort to develop a political
website, Plaintiff Parisi contacted Defendant Lawrence W. Sinclair (“Sinclair”) regarding
various allegations that Sinclair had made related to then-Senator Barack Obama, who was
running for President of the United States. (Cplt. ¶ 23.)
7. After contacting Sinclair, Parisi offered to pay Sinclair $10,000 if Sinclair
agreed to take polygraph examinations and up to $100,000 if the examinations showed
that Sinclair was telling the truth. (Cplt. ¶ 23.)
8. In or about February 2008, Mr. Edward Gelb administered one or more
polygraph examinations of Sinclair at his office in Los Angeles California pursuant
to the agreement between one or more of the Plaintiffs and Sinclair. (Cplt. ¶ 24.)
Sinclair was also interviewed for a few hours. (Cplt. ¶ 24.)
9. Plaintiff Whitehouse.com posted the results of the polygraph examinations
online on Whitehouse.com. (Cplt. ¶ 27.)
10. In and after February 2008, Parisi and Sinclair continued to communicate on the
subjects of the polygraph examinations, the interpretation of the polygraph results and the
SUMF - 2
substance of Sinclair’s allegations in various public fora, including on whitehouse.com. (Cplt.
¶¶ 23, 28.)
The Sinclair Defendants
11. Defendant Sinclair is a citizen of the District of Columbia and the author of a
book entitled Barack Obama & Larry Sinclair: Cocaine, Sex, Lies & Murder? (the “Book”).
(Cplt. ¶¶ 5, 31; Dkt No. 40.) The Book describes, among other things, Sinclair’s allegations
regarding then-Senator Barack Obama and Sinclair’s related interactions with the Plaintiffs,
including Mr. Parisi. (Cplt. ¶ 32.)
12. Defendant Sinclair Publishing Inc. (“SPI”) is or was a Florida corporation with its
principal place of business in Port Orange, Florida and is the publisher of the Book. (Cplt. ¶
31.)
13. SPI published the Book via Lightning Source, Inc., a print-on-demand printer.
(Cplt. ¶ 31.) Lightning Source and its parent corporation, Ingram Content Group Inc., have
been named as defendants in a related action captioned Parisi et al. v. Ingram Content Group
Inc. and Lightning Source, Inc., No. 10-cv-00974 (RJL), which involves substantially the
same allegations as the instant case, and is also pending before this Court.
14. Sinclair and SPI are collectively referred to as the “Sinclair Defendants.”
The Barnes & Noble Defendants
15. Defendant Barnes & Noble, Inc. is a Delaware corporation with its principal place
of business in New York, New York. (Cplt. ¶ 7.) Barnes & Noble, Inc. is the parent company
SUMF - 3
of Barnes & Noble Booksellers, Inc., one of the nation’s largest retailers of books, eBooks,
and related products, and defendant barnesandnoble.com llc (“B&N.com”). (Bock Decl. ¶ 3.)2
16. Defendant B&N.com is a Delaware limited liability corporation with its
principal place of business in New York, New York. (Cplt. ¶ 8.)
17. B&N.com is the largest online retail bookseller in the United States and offers
approximately 6.8 million books for sale on its website www.barnesandnoble.com. (Bock
Decl. ¶ 4.) B&N.com also offers consumers information about an additional 3.1 million used
and out-of-print books, which are not available directly from Barnes & Noble, but can be
purchased from third-party sellers. (Id.)
18. Consumers can purchase books sold on barnesandnoble.com either by placing an
order online or by processing the online order through their local bookstore. (Bock Decl. ¶ 4.)
Between their retail stores and their online operations, Barnes & Noble sells approximately
300 million books per year. (Id. ¶ 5.)
19. Barnes & Noble’s aim in developing the “book superstore” in the 1980’s and
1990’s and in launching its website in 1997 has always been to provide a deep and diverse
selection of book titles for readers. (Bock Decl. ¶ 6.)
20. Barnes & Noble is committed to carrying a vast selection of titles from many
publishers, large and small. (Bock Decl. ¶ 7.) Although many of the books offered for sale on
barnesandnoble.com are published by mainstream trade publishers, barnesandnoble.com also
features numerous books published by smaller publishers. As explained on Barnes & Noble’s
website:
2
Citations to the “Bock Decl.” are to the contemporaneously filed Declaration of David
Bock, dated October 12, 2010.
SUMF - 4
Bestsellers account for less than 5% of our sales and more than
50,000 small publishers and university presses are a growing
percentage of our business. We are committed to carrying a vast
selection of titles from many publishers, large and small.
See http://www.barnesandnobleinc.com/our_company/our_company.html; Bock Decl. ¶ 7.
21. Many small publishers take advantage of the “print-on-demand” technology
offered by Lightning Source and other “print-on-demand” printers, a relatively new
technology which makes it economical to print smaller runs of books. (Bock Decl. ¶ 8.) This
is a burgeoning industry, and one which permits a far broader range of voices to be heard in
the marketplace of ideas. (Id.) Barnes & Noble currently offers 3.6 million print-on-demand
books to consumers on barnesandnoble.com. (Id.) Lightning Source is the leading provider of
print-on-demand services in the United States. Barnes & Noble offers hundreds of thousands
of different books from Lightning Source, published by thousands of different publishers. (Id.)
22. Small publishers sometimes request that their books be stocked in Barnes &
Noble’s retail stores, in addition to being featured on barnesandnoble.com. Because the retail
stores have a finite capacity, Barnes & Noble plays an active role in selecting which books
will be stocked on store shelves. (Bock Decl. ¶ 9.) The instructions which Plaintiffs cite in
the Complaint at ¶ 40 apply only to those small publishers who seek to have their book
stocked in Barnes & Noble’s retail stores and not to those whose books are sold exclusively on
barnesandnoble.com. (Id.)
B. CONTENT DISPLAYED ON BARNESANDNOBLE.COM
23. B&N.com has a display page for each of the approximately 10 million books
offered for sale on the website. (Bock Decl. ¶ 10.) The display page for a given book
provides consumers with content from numerous sources. These may include: (i) descriptive
content from the book’s publisher; (ii) published reviews from publications such as The New
SUMF - 5
York Times, Library Journal, and Kirkus Reviews; and (iii) comments and reviews posted by
readers. An example is annexed as Exhibit A to the Bock Declaration. In limited instances,
Barnes & Noble itself will commission a review of a popular book, which is clearly identified
as such under the heading “From Barnes & Noble.” (Bock Decl. ¶ 10, Ex. B.)
24. Book publishers or Lightning Source send B&N.com and other online retailers
descriptive material about a book for posting on barnesandnoble.com. The content is sent in a
standard XML-based format known as an ONIX file, a format used widely in the publishing
industry. (Bock Decl. ¶ 11.) This allows the publisher or Lightning Source to specify the text
that should be displayed in various common informational fields for online sales, such as the
book’s title and author, and/or notes from the publisher. (Id.)
25. The publishers or Lightning Source provide both the text and the “commentary
type” (e.g., synopsis, publisher information, excerpt) and B&N.com uses the commentary type
to map to the corresponding commentary type in its systems in an automated fashion. (Bock
Decl. ¶¶ 11.)
26. An ONIX file from a single publisher or Lightning Source usually contains data
for numerous books. On average, B&N.com receives data for tens of thousands of books from
Lightning Source each week. (Bock Decl. ¶ 11.)
27. B&N.com uploads the electronic data directly from the ONIX file to its website in
an automated fashion after scanning for unrecognizable characters or other technical problems.
(Bock Decl. ¶ 12.) B&N.com generally does not perform any editorial review of the content
on the ONIX file supplied by publishers or Lightning Source prior to posting the data on
barnesandnoble.com. (Id.)
SUMF - 6
28. If Barnes & Noble receives a complaint directed at specific third-party content on
its website – such as a user review – a Barnes & Noble employee in the Product Database
Group will typically review the content solely to determine if it complies with company
policy, as set forth in the barnesandnoble.com Terms of Use. (Bock Decl. ¶ 13.)
29. As a practical matter, it would not be possible for Barnes & Noble to feasibly
review the third-party content on the approximately 10 million book display pages on
barnesandnoble.com to determine if such content contained any false and defamatory
statements. (Bock Decl. ¶ 14.) Such a review would require an intensive factual investigation
and legal analysis, and would impose a substantial and costly burden upon Barnes & Noble.
(Id.) If compelled to do so, the only feasible option for Barnes & Noble would be to severely
limit the number of books, and the amount and type of information related to those books, that
is available to consumers on barnesandnoble.com. (Id.)
30. Barnes & Noble does not do anything to encourage publishers or Lightning
Source to provide it with false or defamatory content for its website. (Bock Decl. ¶ 15.)
C. THE COPY AT ISSUE IN THIS LITIGATION
31. This litigation arises out of the Book Barack Obama & Larry Sinclair: Cocaine,
Sex, Lies & Murder, which was written and published by the Sinclair Defendants. (Cplt. ¶
31.) The Book was first published in or around July 2009 in hardcover. (Cplt. ¶ 31.)
32. The Book was sold on barnesandnoble.com pursuant to B&N.com’s relationship
with Lightning Source, but was not stocked in Barnes & Noble retail stores. (Cplt. ¶ 39; Bock
Decl. ¶ 17.) Moreover, Barnes & Noble has found no records indicating that the Sinclair
Defendants ever sought to have the Book placed in the Barnes & Noble retail bookstores.
(Bock Decl. ¶ 17.)
SUMF - 7
33. Consistent with the industry practices described above, Barnes & Noble received
an ONIX feed from Lightning Source on July 1, 2009 containing some descriptive material
related to the Book for posting on barnesandnoble.com. (Bock Decl. ¶ 18; Ex. C.) It is Barnes
& Noble’s understanding that the Sinclair Defendants likely provided the descriptive copy to
Lightning Source, which then incorporated it into the ONIX file sent to retailers. (Id. ¶ 18.)
The header on the first page of the print-out states clearly that the file has been sent by
Lightning Source, Inc. by jeff.crawford@lightningsource.com. (Id. ¶ 18; Ex. C.) The ONIX
file also contained information related to a number of other Lightning Source titles. (Id. ¶ 18.)
34. Barnes & Noble uploaded the contents of this ONIX file in an automated fashion
onto barnesandnoble.com, including identical paragraphs regarding the Book displayed under
the headings “From the Publisher” and “Synopsis.” (Bock Decl. ¶ 19.) These identical
paragraphs included a single sentence regarding Plaintiff Daniel Parisi, namely: “[y]ou’ll read
how the Obama campaign used internet porn king Dan Parisi and Ph.D. fraud Edward I. Gelb
to conduct a rigged polygraph exam in an attempt to make the Sinclair story go away” (the
“Contested Copy”). (Cplt. ¶ 39; Bock Decl. ¶ 19.)
35. Barnes & Noble did not write the Contested Copy or contribute to it in any
substantive fashion. The Contested Copy was developed wholly independently by either the
Sinclair Defendants and/or Lightning Source, without any participation by Barnes & Noble.
(Bock Decl. ¶ 20.)
36. Barnes & Noble did not have any communication with the Sinclair Defendants or
Lightning Source regarding the creation of the Contested Copy. (Bock Decl. ¶ 21.)
37. Barnes & Noble did not play any other role in the creation or development of the
Contested Copy by the Sinclair Defendants or Lightning Source. (Bock Decl. ¶ 21.)
SUMF - 8
38. Barnes & Noble did not do anything to encourage the Sinclair Defendants or
Lightning Source to provide it with allegedly false or defamatory content for its website.
(Bock Decl. ¶ 22.)
39. In accordance with its usual and customary business practices, Barnes & Noble
did not review or edit the “From the Publisher” or “Synopsis” fields for the Book prior to
posting them to barnesandnoble.com. (Bock Decl. ¶ 23.) The Contested Copy that appeared
on the Barnes & Noble website is identical to the copy provided by Lightning Source. (Id.
¶ 23; Ex. C.)
40. Barnes & Noble did not receive any complaints related to the Contested Copy
regarding Mr. Parisi, including from Plaintiffs. (Bock Decl. ¶ 24.) Although the Book was
published in July 2009, Plaintiffs did not contact Barnes & Noble regarding the Contested
Copy until May, 2010, shortly before filing the instant suit. (Id.) Barnes & Noble promptly
removed the Contested Copy from its website on May 25, 2010. (Id.)
41. The Contested Copy had already been removed from Barnes & Noble’s website
when Plaintiffs filed their complaint on May 28, 2010. (Bock Decl. ¶ 24; Dkt No. 1.)
42. The Sinclair Defendants contacted Barnes & Noble on two occasions – once to
ask that certain negative reviews be removed and once to ask that certain additional reviews be
added to the display page for the Book. (Bock Decl. ¶ 25.) Barnes & Noble added the
reviews after scanning the files for technical problems. (Id.) The complaint regarding the
negative reviews was evaluated by a junior level employee in the Products Database Group,
who removed those reviews and comments that he believed to be in violation of the
barnesandnoble.com Terms of Use. (Id.) Neither of the Sinclair Defendants’ requests had any
SUMF - 9
relation to the Contested Copy, Mr. Parisi, Whitehouse.com, Whitehouse Network LLC or
Whitehouse Communications, Inc. (Id.)
43. On June 17, 2010, Barnes & Noble ceased distributing the Book following
commencement of this suit. (Bock Decl. ¶ 26.)
Dated: October 12, 2010
Respectfully submitted,

Attorneys for Defendants Barnes & Noble, Inc, and

barnesandnoble.com llc
SUMF - 10
CERTIFICATE OF SERVICE
I hereby certify that, on the date below, I caused the foregoing MOTION FOR
SUMMARY JUDGMENT, along with the accompanying declaration, to be served via ECF on
all counsel of record and upon the following persons by first-class mail:
Lawrence W. Sinclair,
P.O. Box 1963
Washington, DC 20013
(218) 269-2274
Dated: October 12, 2010 /s/ Linda Steinman

Case 1:10-cv-00897-RJL Document 60-1 Filed 10/12/10 Page 1 of 7


WHITEHOUSE.COM NETWORK LLC AND )
)
Plaintiffs, )
) Case No.: 1:10-cv-00897 (RJL)
v. )
)
LAWRENCE W. SINCLAIR A/K/A
“LARRY SINCLAIR”, JEFFREY RENSE, )
BARNES & NOBLE, INC., )
BARNESANDNOBLE.COM LLC, )
AMAZON.COM, INC., BOOKS-A-MILLION, )
INC. and SINCLAIR PUBLISHING, INC., )
)
Defendants. )
)
[PROPOSED] ORDER
Upon due consideration of the motion for summary judgment filed by defendants Barnes
& Noble, Inc. and barnesandnoble.com LLC (collectively, “Barnes & Noble”), the memoranda
in support thereof, and any opposition thereto, it is hereby
ORDERED that Barnes & Noble’s motion is GRANTED and the Complaint of
Plaintiffs Daniel Parisi, Whitehouse.com Inc., Whitehouse.com Network LLC and Whitehouse
Communications Inc. is hereby DISMISSED WITH PREJUDICE.
SO ORDERED.
Dated: ___________________, 2010.
_________________________________
United States District Judge
Richard J. Leon

Sinclair V Parisi: 60-MOTION For Summary Judgment by BARNES & NOBLE INC

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Case 1:10-cv-00897-RJL Document 60 Filed 10/12/10 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT

DEFENDANTS’ BARNES & NOBLE, INC. AND

Daniel Parisi, Whitehouse.com Inc., Whitehouse Network LLC and Whitehouse

Communications Inc. (collectively, “Plaintiffs”), on all causes of action asserted in the

PDF processed with CutePDF evaluation edition www.CutePDF.com

Dated: New York, New York

DAVIS WRIGHT TREMAINE, LLP

By: /s/ Linda Steinman

1919 Pennsylvania Avenue, NW, Suite 800

Attorneys for Defendants Barnes & Noble, Inc, and

IN THE UNITED STATES DISTRICT COURT

MEMORANDUM OF POINTS AND AUTHORITIES

Linda Steinman (admitted pro hac vice)

Attorneys for Defendants

PRELIMINARY STATEMENT .................................................................................................1

STATEMENT OF UNDISPUTED FACTS.................................................................................2

B. The Copy at Issue Was Created and Developed by a Third-Party Publisher..........5

A. Barnes & Noble is Entitled to Immunity Where Barnes & Noble

B. Barnes & Noble is Entitled to Immunity Where Barnes & Noble

C. Barnes & Noble Is Entitled to Immunity Because All of Plaintiffs’

STATEMENT OF UNDISPUTED MATERIAL FACTS ................................................SUMF-1

Barnes v. Yahoo!. Inc.,

Ben Ezra, Weinstein and Co. Inc. v. America Online, Inc.,

* Carafano v. Metrosplash.com, Inc.,

Collins v. Purdue University,

Crenshaw v. Georgetown Univ.,

F.T.C. v. Accusearch, Inc.,

Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,

* Gentry v. Ebay, Inc.,

Goddard v. Google, Inc.,

Lane v. Random House,

Laningham v. U.S. Navy,

Lerman v. Flynt Distributing Co.,

* Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

Perfect 10, Inc. v. CCBill LLC,

* Ramey v. Darkside Productions, Inc.,

* Schneider v. Amazon.com, Inc.,

* Universal Comm. Systems, Inc. v. Lycos, Inc.,

Vassiliades v. Garfinckel’s, Brooks Bros.,

* Zeran v. America Online, Inc.,

42 U.S.C. § 3604(c) ..................................................................................................................15

Communications Decency Act of 1996 (“CDA”), 47 U.S.C. §230, et seq........................... passim

Book by “the affirmative act of publi[shing]” certain allegedly false statements on

and “Synopsis.” (Cplt ¶ 39.)1

book jacket copy.2

STATEMENT OF UNDISPUTED FACTS

described merely as background for the Court.

www.barnesandnoble.com. (SUMF ¶ 17.) B&N.com also offers consumers information about

barnesandnoble.com are published by mainstream trade publishers, barnesandnoble.com also

publishers, large and small.” (SUMF ¶ 20.)

Many small publishers take advantage of the “print-on-demand” technology offered by

barnesandnoble.com. (Id.) Lightning Source is the leading provider of print-on-demand services

Lightning Source, published by thousands of different publishers. (Id.)

corresponding commentary type in its systems in an automated fashion. (SUMF ¶ 25.) An

Lightning Source each week. (Id.)

to those books, made available on barnesandnoble.com. (Id.)

B. The Copy at Issue Was Created and Developed by a Third-Party Publisher

posted the above-described Contested Copy in an automated fashion on barnesandnoble.com,

shortly before filing suit. (Id.)

False Light Invasion/Misappropriation of Privacy, (3) Business Disparagement, (4) Tortious

supplied by Lightning Source.

F.3d 173 (D.C. Cir. 1999).