The 9th U.S. Appeals Court, San Francisco, upheld a ‘broad grant ...
The 9th U.S. Appeals Court, San Francisco, upheld a “broad grant of immunity” to service providers in Sec. 230 of the Communications Decency Act (CDA) -- regardless of state laws that could trigger exemptions under the provision -- in…
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denying en banc rehearing of a contributory infringement case. The court amended a March opinion denying state intellectual property claims by adult Web publisher Perfect 10 against billing service providers CCBill and CWIE (WID March 30 p9). Perfect 10 told the 9th Circuit its ruling contradicted a First U.S. Appeals Court, Boston, decision in Universal Communication Systems v. Lycos (WID Feb 28 p9). The case involved consideration of a state-law trademark dilution claim as a federal intellectual property claim, which would negate provider immunity for users’ defamatory statements under the federal CDA. The Boston court avoided drawing a line between defamation and trademark because it would have raised serious First Amendment issues; the San Francisco court said in a new footnote it couldn’t avoid the issue. Various state laws could be deemed to relate to “intellectual property,” such as trademark dilution, unfair competition and right of publicity, the 9th Circuit said: “No litigant will know if he is entitled to immunity for a state claim until a court decides the legal issue.” Defendants normally granted Sec. 230 immunity “would thus be forced to bear the costs of litigation under a wide variety of state statutes that could be arguably classified as ‘intellectual property,'” which would “fatally undermine the broad grand of immunity provided by the CDA,” the San Francisco court said.