This article is was published in the December 2000 issue of Cyberspace Lawyer

 

Storm Warning to Good Samaritans: Sail Clear of the Safe Harbor

 

by Hillel I. Parness^*

 

            Last month, a court in France ruled that Yahoo, the popular web portal, had to block access to portions of its primary, U.S. website, www.yahoo.com, containing Nazi information and memorabilia in accordance with French laws governing racist speech – despite the fact that Yahoo’s French website, www.yahoo.fr, already purportedly complies with these obligations.  Decisions like this, which hold international web participants to the strictest-common-denominator – the jurisdiction with the most restrictive laws – surely have the Internet Service Providers and portals concerned.

 

Also last month, a California state court issued what will come to be seen – assuming it withstands appeal – as a landmark Internet decision to the benefit of the ISPs and portals.  On November 7, 2000, in Stoner v. eBay, the Superior Court for San Francisco County immunized eBay Inc., the auction website, from liability for the exchange of allegedly bootleg music over its auction website, on the theory that eBay’s activities were protected by the Good Samaritan provision of the Communications Decency Act (“CDA”).[1]  The Stoner decision is noteworthy as the first published decision to extend the CDA’s Good Samaritan protection to activity that some might not immediately classify as “speech.”  It is even more noteworthy, however, in light of the fact that it was issued just months after a California federal court issued an injunction against Napster, barring that company from continuing to allow the exchange of allegedly-copyright-infringing MP3-format files over its peer-to-peer file exchange system, located as www.napster.com.  The difference?  eBay was sued under state law, and successfully sought protection under the Good Samaritan provision of the Communications Decency Act (“CDA”), while Napster, which had been sued under federal copyright law, unsuccessfully argued for protection under the safe harbors of the Digital Millennium Copyright Act (“DMCA”).

 

The CDA Good Samaritan Provision

            The CDA was passed in 1996, but in the well-publicized case of ACLU v. Reno,[2] the Supreme Court deemed unconstitutional the central provisions of the CDA, which created liability for the transmission of obscene materials over the Internet to minors.  Nevertheless, some other portions of the CDA remained, among them the Good Samaritan provision:

 

(c) Protection for ‘good samaritan’ blocking and screening of offensive material.

(1) No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.[3]

 

Under the CDA, “interactive computer service” (“ICS”) is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.[4]  “Information content provider” (“ICP”), in turn, is defined 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.”[5]

 

            The Good Samaritan provision specifically states, however, that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property,”[6] encompassing both federal and state intellectual property laws,[7] and indicating that the CDA Good Samaritan provision will not immunize from liability parties defending, for example, charges of copyright infringement.

 

Prior Good Samaritan Decisions

Before Stoner, a handful of published decisions – all relating to defamation or other offensive speech, and almost all of which arose from cases brought against America Online, the preeminent Internet access provider – discussed protection under the CDA’s Good Samaritan provision.  In Zeran v. America Online, Inc.,[8] the Fourth Circuit Court of Appeals held that AOL was immunized from liability for “defamatory speech initiated by a third party”[9] – messages posted by individuals that falsely indicated that the plaintiff was the source of offensive and tasteless merchandise relating to the Oklahoma City bombing, and provided plaintiff’s telephone number, which led, in turn, to further defamation of plaintiff on the radio.  The court found that AOL operated as a publisher (rather than a distributor, as plaintiff argued) because, even according to plaintiff’s pleadings, “AOL is cast in the same position as the party who originally posted the offensive messages,” and, as such, AOL was entitled to immunity under the Good Samaritan provision.[10]

 

            In a similar decision in 1998,[11] AOL was once again immunized under the Good Samaritan provision, this time by the District Court for the District of Columbia, for liability for alleged defamation by Internet journalist Matt Drudge, whose columns were published on AOL, of White House aide Sidney Blumenthal, writing:

 

While [the Good Samaritan] provision of the statute primarily addresses obscenity and violent material, it also references material that is “otherwise objectionable,” a broad enough category to cover defamatory statements as well.[12]

 

Also in 1998, AOL successfully moved to dismiss in Doe v. America Online,[13] in which the mother of a child of whom obscene photos were advertised and sold over AOL sued AOL for facilitating said advertisement and sale.  AOL moved to dismiss under the Good Samaritan provision, and its motion was granted, on the basis that to hold otherwise – making AOL liable for the distribution of pornography over its network – would make AOL liable as the publisher of the materials.  The court certified three questions regarding the CDA to the Florida Supreme Court, culminating with this one: “whether a computer service provider with notice of a defamatory third party posting is entitled to immunity under section 230 of the Communications Decency Act”[14] – demonstrating that, at least to the court, the case is about defamation.  And most recently, in Ben Ezra, Weinstein, and Co. v. America Online Inc.,[15] the Tenth Circuit affirmed a finding that AOL qualified for the CDA’s Good Samaritan protection for allegedly defamatory information posted on AOL by third parties regarding plaintiff’s publicly-traded stock.[16]  But Stoner moved beyond all of these precedents.

           

Stoner v. eBay

            In 1999, Randall Stoner, acting as a “private attorney general on behalf of any and all affected members of the general public,”[17] sued eBay Inc., the preeminent Internet auction site, under the California Business and Professions Code, on the basis of alleged violations of the California Penal Code relating to the sale of bootleg sound recordings over the Internet.[18]  eBay moved for summary judgment, arguing that it was immunized from liability by the Good Samaritan provision of the CDA.  The court granted eBay’s motion, relying on Zeran, Blumenthal and Doe for support.[19]  First, the court noted that the parties did not dispute that eBay is an ICS, and not an ICP, because “the descriptions of the goods and services auctioned over the eBay service are created entirely by the sellers.”[20]  Next, the court wrote that: “Plaintiff is seeking to hold eBay responsible for informing prospective purchasers that illegal recordings may be purchased – information that originates with the third party sellers who use the computer service.”[21]

 

On this basis, the court made the following analogy: “eBay provides interactive computer services for a fee, just as America Online provides interactive computer services, for which it charges a fee.”[22]  Stoner argued – and the court rejected the argument – that the Good Samaritan provision was designed only to apply to “bulletin board models” (such as AOL), but not to “sales models” (such as eBay).[23]  Instead, wrote the court, Good Samaritan “immunity extends beyond the publication of harmful materials over the Internet, and encompasses the distribution of such material in transactions effected over the Internet.”[24]  To overcome the Good Samaritan protection, the court explained, a plaintiff has to demonstrate the ICS’s “actual, rather than constructive, knowledge of illegal sales,” and “some affirmative action” on the ICS’s part, “beyond making its facilities available in the normal manner.”[25]  Without reference to the statement in the statute that the Good Samaritan provision shall not “be construed to limit or expand any law pertaining to intellectual property,”[26] the court exonerated eBay for liability for what could reasonably be classified as contributory or vicarious copyright infringement.

 

The Good Samaritan Provision Was Instituted in Response to Online Defamation

            As noted above, the prior Good Samaritan cases, Zeran, Blumenthal, Doe and Ben Ezra, all immunized AOL from charges of defamation arising from postings to AOL by third parties.  This pattern fits neatly into the legislative history of the Good Samaritan provision, which was specifically added to address disparate results in two cases decided before the passage of the CDA, Cubby, Inc. v. Compuserve, Inc.,[27] and Stratton-Oakmont, Inc. v. Prodigy Services Co.[28]  According to both the Senate and House Conference Reports on the CDA, Section 230:

 

provides “Good Samaritan” protections from civil liability for providers or users of an interactive computer service for actions to restrict or to enable restriction of access to objectionable online material.  One of the specific purposes of the section is to overrule Stratton-Oakmont v. Prodigy and other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material.[29]

 

Similarly, in his address to the Senate in advance of the oral arguments in ACLU v. Reno, Senator Dan Coats stated that the CDA “encourages blocking software and other technologies by providing good-faith defenses designed to protect the good Samaritan attempting to block or screen pornographic material.”[30]

 

But in Stoner, the court moved beyond the paradigmatic Good Samaritan cases in two important ways: (i) by extending the classification of ICSs beyond Internet access providers (such as AOL, Compuserve and Prodigy), and (ii) by immunizing those ICSs from a wider range of online liability – in this case the alleged facilitation of music bootlegging – by limiting the classification of eBay’s involvement to the republication of content from third-party ICPs.

 

Napster, MP3Board and the DMCA Safe Harbors

            Meanwhile, just a few months ago, the District Court for the Northern District of California, in the Recording Industry Association of America’s federal copyright suit against Napster, denied Napster’s motion for summary judgment,[31] finding that it could not rely on the “transitory digital network communications” safe harbor provision of the DMCA, which immunizes “service providers” from copyright liability “by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections.”[32]  Because, the court found, Napster could not qualify as a “system or network controlled or operated by or for the service provider,” the safe harbor was inaccessible to it.[33]  In July 2000 the court issued an injunction against Napster, finding it liable for copyright infringement.  This injunction was stayed pending the appeal of that decision to the Ninth Circuit Court of Appeals, where oral argument took place on October 2, 2000.  These initial results in Napster stand in stark contrast to that of Stoner.  According to both Napster and eBay, neither system is designed to facilitate illegal musical recordings.  Yet, while both allegedly do make such transfers possible, only Napster is faced with legal decisions that, if upheld, spell the end of its basic business model.

 

            There are those who would argue that Napster and eBay are easily distinguished, as Napster’s software transfers the files from one user to another, while eBay simply posts information regarding goods available for purchase, leaving it up to the buyers and sellers to contact each other.  While true, their services are also distinguishable because eBay, and not Napster, makes money off each transaction.  Furthermore, MP3Board.com – another company involved in the transfer of MP3 files over the Internet – also is unlikely to find immunity in the DMCA safe harbors, despite the fact that its role in the transmission of allegedly infringing music files is more passive than that of Napster, and it does not charge for its service.

 

MP3Board maintains a website that houses a searchable database of hypertext links to MP3 files on the Internet.  In June, 2000, after receiving cease and desist letters from the RIAA, MP3Board sued the RIAA in federal court – a different division of the same court in which the RIAA sued Napster – seeking a declaratory judgment that its activities were immunized by, inter alia, four of the safe harbor provisions of the DMCA.[34]  Just as the “transitory” safe harbor was unavailable to Napster, it and its counterparts likely will not be of any assistance to MP3Board.[35]  Under the current state of play, eBay, which makes commissions on each sale facilitated by its system, is immunized from liability under the Good Samaritan provision of the CDA for the sale of potentially infringing music files via its auction system, while Napster and MP3Board, neither of which (at least as they are currently structured)[36] receives any money for facilitating the transfer of such music files, face significantly grimmer futures.

 

Conclusion/Practice Tip

            Recognition of this trend leads to very practical implications for attorneys on both sides of the aisle in cases such as Stoner, where the actus reus took place in cyberspace and can be classified, at least technically, as speech.  First, plaintiffs’ attorneys should be wary of bringing cases solely under state statutes that complement the Copyright Act.  In all likelihood, the statute under which they are bringing suit has successfully withstood one or more preemption challenges – no doubt resulting in findings that it does not conflict, but rather augments, the federal intellectual property laws.  As such, there are courts that will give defendants in such cases the protection of the CDA’s Good Samaritan provision, regardless of the CDA’s statement that it is not intended to affect intellectual property laws.

 

            Second, IP attorneys defending such actions, in which plaintiffs allege only state law violations, should consider resisting their natural temptation to move to dismiss on the basis of federal copyright preemption.  While this may score a temporary victory, it will no doubt lead to a new case filed in federal court under the Copyright Act, and it is doubtful that the DMCA’s safe harbors will be available.  Instead, defendants in such cases should count their blessings, and seek out ways to classify the violation with which they are charged as a form of speech regulation.  As such, the CDA’s Good Samaritan provision will protect them (assuming they qualify as an ICS) from being treated as the speaker or publisher, completely immunizing them from liability.