United States District Court,
D. South Dakota,
Southern Division.
PATENTWIZARD, INC. and Michael S. Neustel, Plaintiffs,
v.
KINKO'S, INC., Defendant.
No. Civ. 00-4143.
Sept. 27, 2001.
Plaintiff brought defamation suit against provider of interactive computer service based on statements made on Internet by individual who had rented computer from provider. On provider's motion to dismiss, the District Court, Piersol, Chief Judge, held that Communications Decency Act barred claims.
Motion granted.
West Headnotes
[1] Federal Courts 
34
Once
district court's subject matter jurisdiction has been challenged,
plaintiffs
bear burden of establishing jurisdiction.
Fed.Rules
Civ.Proc.Rule 12(b)(1), 28 U.S.C.A.
[2] Libel and Slander 28
(Formerly 237k25)
[2]
Telecommunications 1344
(Formerly 372k461.15)
Provider
of interactive computer service was "publisher" for purposes of
Communications Decency Act, and thus could not be held liable under state law
for defamation based on statements made on Internet by individual who had
rented computer from provider; provider configured computer in such way that it
was not possible to identify user, and plaintiff sought to hold provider liable
for its conduct in disseminating statements and to place provider in user's
shoes. Communications Act of 1934,
§ 230, as
amended, 47
U.S.C.A. § 230.
*1070
Ronald A. Parsons, Jr., Johnson, Heidepriem,
Miner, Marlow & Janklow, Sioux Falls, SD, Matthew
S. McCaulley, Hynes & McCaulley, Sioux Falls,
SD, for plaintiff.
Jeffrey
C. Clapper, Boyce, Murphy, McDowell &
Greenfield, Sioux Falls, SD, Raymond
L. Sweigart, Blair
Jacobs, Pillsbury, Winthrop LLP, McLean, VA, for
defendant.
MEMORANDUM OPINION AND ORDER
PIERSOL, Chief Judge.
Defendant, Kinko's, Inc. (Kinko's), has filed
a Motion to Dismiss the Complaint filed against it by Plaintiffs PatentWizard,
Inc. and Michael S. Neustel. For the
reasons stated below, the Motion to Dismiss is granted.
BACKGROUND
Plaintiff Michael Neustel is a patent lawyer
from North Dakota, who, according to the Complaint, has a national reputation
in the field of patent law. Neustel's law firm, in which he is the sole
principal, owns and operates plaintiff PatentWizard. From the Complaint, it appears that
PatentWizard markets software aimed at people who want to patent their
inventions.
Defendant Kinko's provides access to the
Internet by renting computers to individual users. According to the Complaint, Kinko's does not
keep a record of the identities of the
persons who rent its computers, and does not give a unique Internet Protocol
(IP) address to each of its rented computers.
These omissions allegedly make it possible for a Kinko's user to log
onto the Internet under a pseudonym, without fear that other Internet users will
be able to trace his or her online statements back to him or her in the real
world, or even to a particular Kinko's computer.
On May 9, 2000, Neustel hosted a "chat
room" session about software that had been recently released by
PatentWizard. One of several
participants in that chat room was a user with the screen name
"Jimmy" who allegedly logged on from a Kinko's computer. During the session, Jimmy made numerous
disparaging statements about Neustel and PatentWizard which plaintiffs claim
defamed them and interfered with their prospective business relationships. Plaintiffs allege that, due to the
configuration of the Kinko's computer network, they have been unable to locate
and pursue legal remedies against Jimmy.
In lieu of suing Jimmy, the plaintiffs now
brings six claims against Kinko's: (1)
negligent failure to monitor its computer *1071 network; (2) negligent failure to maintain proper and
adequate records; (3) negligent
spoliation of evidence; (4) intentional
spoliation of evidence; (5) aiding and
abetting defamation; (6) aiding and
abetting interference with prospective business relationships. Kinko's has moved to dismiss all of these
claims, arguing that they are preempted and barred by federal law, and that
they are unavailable under state common law.
DISCUSSION
[1] Kinko's brings its Motion to Dismiss under Rules
12(b)(1) and
12(b)(6). Once a district
court's subject-matter jurisdiction has been challenged under Rule
12(b)(1), the plaintiffs bear the burden of
establishing jurisdiction. Osborn
v. United States,
918 F.2d 724, 730 (8th Cir.1990). In ruling on a motion to dismiss under Rule
12(b)(6), the district court must look solely to
the allegations in the Complaint, and must not dismiss the complaint unless it
appears beyond doubt that the plaintiffs can prove no set of facts
demonstrating that they are entitled to relief. Krentz
v. Robertson Fire Protection District,
228 F.3d 897, 905 (8th Cir.2000).
The Communications Decency Act of 1996, as
embodied in 47
U.S.C. § 230,
limits lawsuits against those who provide access to the Internet. Under § 230,
No provider or user of an interactive computer service
shall be treated as the publisher or speaker of any information provided by
another information content provider.
47
U.S.C. § 230(c)(1). Section
230 also prevents plaintiffs from bringing causes
of action under state law which are inconsistent with its provisions. 47
U.S.C. § 230(e)(3). The parties agree
that Kinko's is a provider of an
"interactive computer service" as defined by the Act and that Jimmy
was an "information content provider." The question in this case, then, is whether
the claims in the plaintiffs' Complaint seek to treat Kinko's as a publisher or
speaker of information that Jimmy posted on the Internet.
[2] Kinko's is a publisher for purposes of § 230. As the Fourth Circuit explained in Zeran
v. America Online, Inc.,
129 F.3d 327 (4th Cir.1997), the common law of
defamation applied both to publishers and distributors and lumped both under
the term "publisher." Zeran,
129 F.3d at 332 (citing Prosser and Keeton on
the Law of Torts, § 113, at 799 (5th
ed.1984)). Although the standards of
liability differed between those who published writings and speeches and those
who disseminated them, both were potentially liable for defamation within the
larger publisher category. Id. In
enacting § 230, Congress
meant to insulate distributors as well as publishers from liability for
defamation. Id.
The Complaint seeks to treat Kinko's as a
publisher in two ways. First, it seeks
to treat Kinko's as a distributor by imposing liability upon Kinko's for its
conduct in disseminating Jimmy's statements.
This is itself prohibited by § 230. See Zeran,
129 F.3d at 330-34. Second, the Complaint seeks to place Kinko's
in Jimmy's shoes, by holding Kinko's responsible for alleged defamatory matter
that was published by Jimmy. As the
Fourth Circuit noted in Zeran, the plain language of § 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."
Id. at 330. That federal
immunity extends to Kinko's, and bars the plaintiffs' claims in this case.
As the parties point out, this case implicates
some important issues of policy. On the
one hand, the ability of individual users to log onto the Internet anonymously,
undeterred by traditional social and legal *1072 restraints, tends to
promote the kind of unrestrained, robust communication that many people view as
the Internet's most important contribution to society. On the other hand, the ability of members of
the public to link an individual's online identity to his or her physical self
is essential to preventing the Internet's exchange of ideas from causing harm
in the real world. See generally
Lawrence Lessig, Code and Other Laws of Cyberspace 14-17, 24-29 (2000).
The legislative resolution of these issues
will, indirectly, shape the content of communication over the Internet. For now, the § 230 of the
Communication Decency Act errs on the side of robust communication, and
prevents the plaintiffs from moving forward with their claims. There is no reason to decide whether the
claims are available under state law or whether they are also barred by the
First Amendment. Accordingly,
IT IS ORDERED that the Motion to Dismiss
(Docket No. 7) is granted.
In accordance with the Memorandum Opinion and
Order filed on this date with the Clerk,
IT IS ORDERED, ADJUDGED, and DECREED that this
action is dismissed.
163 F.Supp.2d 1069, 29 Media L. Rep. 2530
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DOCUMENT