In October 1994, an unknown user posted statements on Prodigy's "Money Talk" bulletin board indicating that Stratton Oakmont, Inc., a Long Island securities brokerage firm, and its president, Daniel Porush, had committed criminal and fraudulent acts in connection with the initial public offering of Solomon-Page, Ltd. As a result, Stratton and Porush sued Prodigy and anonymous defendants in New York state court for defamation.

The plaintiffs argued that Prodigy should be considered a "publisher" of the anonymous poster's statements. Under the common law of defamation, if Prodigy were considered a publisher, it could be held liable for the statements of the unknown user. Conversely, if it were found to be merely a "distributor," it could not be held liable unless it knew or had reason to know about the allegedly defamatory statements.

"Money Talk" was, at the time, a widely read forum covering stocks, investments, and other business matters. Prodigy contracted with Charles Epstein to act as "Board Leader," a position entailing, in part, participation in board discussions, board promotional efforts, and board supervision. In its argument that Prodigy was a publisher of the defamatory statements, the plaintiffs pointed to representations Prodigy had made in various newspaper articles representing itself as an organization that exercised editorial control over the content on its servers.

In making their case, the plaintiffs also pointed to Prodigy's "content guidelines," which stated rules that users were expected to abide by, a software screening program which filtered out offensive language, and the employment of moderators or "Board Leaders" who were responsible for enforcing the content guidelines.

In May 1995, on the plaintiffs' motion for partial summary judgment, the court held that these representations and policies were sufficient to treat Prodigy as a publisher. In so holding, the court distinguished the case from an earlier one involving CompuServe, which was found merely to be an "electronic for-profit library" or repository and thus a passive distributor. In particular, the court pointed to Prodigy's creation of an "editorial staff of Board Leaders who have the ability to continually monitor incoming transmissions." The court noted, however, that bulletin boards should normally be considered distributors when they do not exercise significant editorial control, as Prodigy had done.

Prodigy moved for reconsideration of the May 1995 decision, but the party's settled in October 1995, apparently before the motion was decided.

In passing the Communications Decency Act of 1996, which, among other things, established immunity for internet service providers for publishing "information provided by another information content provider," 47 U.S.C. § 230(c)(1), the House explicitly stated its intent to overturn the result reached in the Prodigy case. See H.R. Conf. Rep. 104-58, at 194.

On March 13, 2007, Viacom International, which owns, among other properties, Comedy Central, MTV, BET, and Paramount Pictures, sued YouTube and its parent Google for copyright infringement seeking $1 billion in damages. Viacom asserts a number of copyright related claims, including direct copyright infringment for public performance, public display, and reproduction, as well as several indirect claims for inducement of copyright infringment, contributory copyright infringment, and vicarious copyright infringement.

Update:

04/28/08 - Viacom filed a first amended complaint.

05/23/08 - YouTube filed an answer to the first amended complaint.

07/02/08 - Court ordered Google to produce to Viacom "all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website."

Update 2:

06/23/2010 - The District Court granted YouTube's motion for summary judgment. The court ruled that YouTube was eligible for the safe-harbor provisions of Section 512(c) of the DMCA, meaning that YouTube was immune from copyright liability stemming from user-posted content. According to the court, even if YouTube "not only [was] generally aware of, but welcomed, copyright-infringing material being placed on their website," YouTube lacked specific knowledge of particular infringing clips. Viacom had argued that YouTube's "general awareness" of "widespread and common" infringement was enough to disqualify YouTube from the safe harbor, but the court disagreed with that interpretation of § 512(c)(1)(A).

The District Court also ruled in YouTube's favor with respect to § 512(c)(1)(B), which disqualifies a service provider from safe-harbor protections if it receives "a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity." The court ruled that a service provider "must know of the particular case [of infringement] before he can control it," and that YouTube lacked the necessary knowledge to have the “right and ability to control” the infringement.

The court also ruled for YouTube on a number of related issues, including whether certain technical processes (like encoding) that take place automatically on YouTube are not eligible for protection as they are not done at the direction of a user.

04/05/2012 - On appeal, the Second Circuit Court of Appeals reversed the grant of summary judgment and remanded. First, the Second Circuit ruled that the district court was correct in deciding that § 512(c)(1)(A) "requires knowledge or awareness of specific infringing activity"; the Second Circuit ruled, however, that there was evidence (mainly, some internal email exchanges between YouTube employees) to suggest that YouTube may have had such specific knowledge of some infringing clips. The Court of Appeals remanded on this issue, to determine if YouTube in fact had specific knowledge of any of the clips at issue in this lawsuit.

In addressing Viacom’s argument that YouTube’s actions constituted willful blindness, the court ruled that the common-law "willful blindness" doctrine could still apply in some circumstances, even though the DMCA, at § 512(m), states that a service provider does not need to affirmatively monitor its service for infringing content.

The Second Circuit disagreed with the District Court’s interpretation of the "control and benefit" provisions of § 512(c)(1)(B). The Court of Appeals agreed with the District Court’s holding that a service provider does not have the “right and ability to control” the infringement based on the bare ability to remove or block user-posted materials. Unlike the District Court, though, the Second Circuit did not rule that (c)(1)(B) required particular knowledge of specific cases of infringement. If a service provider was "exerting substantial influence on the activities of users, without necessarily—or even frequently—acquiring knowledge of specific infringing activity," a service provider would have a “right and ability to control” under § 512(c)(1)(B). (The second element of this safe harbor exception, financial benefit directly attributable to the infringing activity, was not before the court.) The Court of Appeals thus remanded this issue as well.

Finally, the Second Circuit agreed with the District Court that three of YouTube's automated processes were protected by the safe harbor: transcoding user-uploaded clips into different video formats, playing the clips at the request of users, and finding "related videos." A fourth function—syndication of a limited number of clips to third-party companies—drew more suspicion from the Court of Appeals, but it was unclear whether any of clips at issue in this lawsuit were actually syndicated. The Second Circuit thus remanded for more fact-finding.

Todd Hollis objected to the description posted about him on DontDateHimGirl.com, a website that allows women to post about men and warn other women about them. Mr. Hollis sued Tasha Joseph/Cunningham, the operator of the website, alleging defamation in Pennsylvania state court, after she refused to remove the posts.

According to the initial complaint, four separate profiles were created by anonymous users of the site, which allegedly falsely claimed that Hollis had multiple children and had herpes; was "gay" or "bi"; had given the user an STD; and that he "wears dirty clothes," "complains about paying child support", and that his "crib is a dump."  (Compl. ¶ 20, 25-26, 30, 34.)  Hollis claims to have complained to Joseph/Cunningham, who refused to remove the profiles.  (Compl. ¶ 23.)  

Hollis sued Joseph/Cunningham, the Cavelle Company, Inc. (the registrant for dontdatehimgirl.com), and three individuals who he claims were responsible for the false profiles for defamation, seeking $50,000 in actual damages plus punitive damages.

Joseph and the Cavelle Company moved to dismiss for lack of personal jurisdiction.  The Pennsylvania court granted this motion with respect to Joseph/Cunningham, a resident of Florida, and the Cavelle Company.  Hollis filed a second lawsuit in federal court in Florida on November 29, 2007.

On May 10, 2007, a user on the FreeRepublic forum posted that he had heard on a XM Satellite Radio talk show that DNC Chairman Howard Dean had called Kansas Governor Kathleen Sebelius asking her to politicize the recovery effort from a tornado in Greensburg, Kansas, by dragging her feet on requesting federal aid and then blaming the lack of response on President Bush.

That same day, the DNC, through counsel, sent a cease-and-desist email to the webmaster of FreeRepublic. The email complained that FreeRepublic had not only repeated the defamatory statements of the radio show host, but indicated that the host's source was "extremely reliable and in a position that would give him direct knowledge of these revelations." The email asserted that the statements were "false and defamatory," "libelous and slanderous," and "clearly threaten to interfere with the DNC’s operations and ability to solicit support and raise funds." The email demanded that FreeRepublic remove the defamatory statements and post a prominent retraction.

The FreeRepublic did not remove the statements, and there is no indication that the DNC has taken any further action.

Incidentally, the DNC also sent a cease-and-desist letter to XM Satellite Radio, complaining about the original radio show broadcast. XM posted audio clips of the show on its website, but it does not appear that the DNC sent them a cease-and-desist letter in regard to that posting.

 

The plaintiffs, Dr. Stephen J. Barrett and Dr. Timothy Polevoy, operated websites devoted to exposing health frauds. Ilena Rosenthal directed the Humantics Foundation for Women and operated an Internet discussion group. Barrett and Polevoy claimed that Rosenthal and her co-defendants committed libel by distributing defamatory statements in emails and Internet postings to various forums. Specifically, they alleged that Rosenthal republished two Usenet newsgroup messages "accusing Dr. Polevoy of stalking women and urging 'health activists . . . from around the world' to file complaints to government officials, media organizations, and regulatory agencies." They also alleged that Rosenthal posted a message to a newsgroup stating that Quackwatch, the organization associated with Barrett's website, "appears to be a power-hungry, miguided bunch of pseudoscientific socialistic bigots," that it was "an industry funded organization," and that it was being sued by many doctors and health organizations. They claimed also that Rosenthal posted another message to a newsgroup referring to Barrett and Polevoy as "quacks."

Rosenthal moved to strike the plaintiffs' complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). She claimed that her statements were protected speech, and argued that the plaintiffs could not establish a probability of success on the merits of their lawsuit because she was immune from liability under CDA 230 (which insulates a "provider or user of an interactive computer service" from being held liable as the publisher or speaker of "any information provided by another information content provider"). She also argued that her statements were non-actionable statements of opinion.

The district court granted the motion, finding that Rosenthal's statements concerned an issue of public interest within the scope of the anti-SLAPP statute, and that all but one of the alleged defamatory statements were non-actionable statements of opinion. The only remaining statement appeared in an article that Rosenthal received via e-mail from her co-defendant, Tim Bolen. This article accused Dr. Polevoy of stalking a Canadian radio producer. Rosenthal posted a copy of the article on two newsgroups devoted to alternative health issues, not on her own discussion group. The trial court held that Rosenthal's republication of Bolen's article was protected by CDA 230.

The California Court of Appeal reversed the trial court, insofar as its decision applied to the statement about Dr. Polevoy's alleged stalking. It held that CDA 230 did not protect Rosenthal from liability as a "distributor" of the defamatory material under the common law of defamation.

In November 2006, the California Supreme Court reversed the Court of Appeal, holding that CDA 230 prohibits "distributor" liability for Internet publications. It also held that CDA 230 protects individual users of interactive computer services, and that it protects "active" republication as well as "passive" republication of others' statements. On the "distributor" issue, the California Supreme Court followed Zeran v. Amercia Online, 129 F.3d 327 (4th Cir. 1997), which also refused to draw a distinction between a "distributor" and a "publisher' for purposes of CDA 230. Both cases are widely regarded as important decisions standing for the proposition that, in the words of Eric Goldman, "no one is liable for other people's content online -- period (except for claims not covered under the statute -- IP, federal criminal law, ECPA)."

It is unclear from the docket sheets what the status of the lawsuit is with respect to the remaining defendants, but there has been no action in the trial court since 2004.

Update:

Tim Bolen reports that Judge Stephen Dombrink of California Superior Court, Alameda County, dismissed the case against the remaining defendants in March 2009.

In late 2006, restaurant franchisor Quiznos and video-sharing site iFilm co-sponsored a nationwide contest, “Quiznos v. Subway TV Ad Challenge,” inviting members of the public to submit videos comparing a Quiznos sandwich to a Subway sandwich using the theme "meat, no meat." Contestants submitted their videos to www.meatnomeat.com, and iFilm published entries on its website, where they remained following the end of the contest and selection of the winner.

Subway sued Quiznos in federal court in Connecticut, and it subsequently amended its complaint to include a claim against iFilm. Only one count of the complaint related to the Ad Challenge, and that count alleged false and misleading advertising in violation of the Lanham Act.

Quiznos moved to dismiss this count of the complaint based on the immunity for publication of user-generated content found in the Communications Decency Act (47 U.S.C. § 230(c), "CDA 230"). The court denied the motion, holding that CDA 230 provides defendants an affirmative defense, which can be raised on a motion for summary judgment, but not on a motion to dismiss. Doctor's Assocs. Inc. v. QIP Holders, LLP, No. 06-cv-1710, slip op. at 4-5 (D. Conn. Apr. 19, 2007).

This case is significant in that it departs from the majority of cases holding that CDA 230 provides a valid ground for granting a motion to dismiss. Another interesting issue that is sure to arise is whether a claim of false advertising under the Lanham Act fits within CDA 230 immunity. By its terms, CDA 230 does not apply to "any law pertaining to intellectual property." 47 U.S.C. § 230(e)(2). False advertsing law is not usually thought of as an aspect of intellectual property law, but the federal false advertising provision is found in the Lanham Act, side-by-side with federal trademark laws.

Update:

2/4/2008 - Subway filed a seventh amended complaint.   

2/19/2010 - The court denied Quiznos' motion for summary judgment.  The case subsequently settled. 

A female minor registered with MySpace and contacted a nineteen-year-old male through the site. They agreed to meet, and he sexually assaulted her. The minor and her mother sued MySpace and its parent, News Corp., for negligence, fraud, and negligent misrepresentation. The plaintiffs first filed a lawsuit in Texas state court. They voluntarily dismissed that action and refiled in New York state court. The defendants removed the action to federal court in New York, and that court transferred the action to federal court in Texas.

The defendants moved to dismiss, and the federal court in Texas dismissed the claims on CDA 230 grounds. This is interesting, because the plaintiffs had characterized the lawsuit as a safety issue, alleging that MySpace did not provide proper protection for minors. Since the CDA applies primarily to publication torts, it was not clear how it would apply here. The court ultimately determined that, regardless of how well the plaintiffs disguised the issues in their complaint, the dispute was over content published on MySpace and a lack of filtering or screening on the part of the site -- which are prime CDA issues. See Doe v. MySpace, 474 F.Supp.2d 843 (W.D. Tex. 2007).

Plaintiffs appealed to the U.S. Court of Appeals for the Fifth Circuit, which affirmed the trial court's decision on May 16, 2008.  Plaintiffs then appealed to the United States Supreme Court, which declined to consider the case.