Tag Archives: litigation

UCLA v. AIME – more good news

The court finally issued its order dismissing the case in the AIME v. UCLA case. (The second amended complaint, in case you’re counting.) In short, it was another big victory for libraries. The court affirmed all its earlier reasoning, and deepened its reasoning in a few key areas.

Here’s a quick summary — more discussion will be out on all the usual places in the near future, I’m sure.

Sovereign & Qualified Immunity Defenses
– All claims against Regents and claims seeking damages against individual defendants in their official capacity were dismissed because of sovereign immunity.
– The officials were also protected by sovereign immunity for their supervisory activities.
– The officials also had qualified immunity because the actions taken were not clearly copyright infringement; where there is at least some reasonable ambiguity around fair use, one could reasonably believe the action is fair use, and not copyright infringement. “The Court finds that a reasonable person would not have known that the alleged conduct violated any clearly established rights pursuant to copyright law because it is ambiguous whether the use was fair use under copyright law.” More on that below.

Associational Standing
– The earlier holding that AIME does not have associational standing still applies.

Interpreting the License
– The earlier holdings on interpreting the license language still apply — the court had said the activity looked like a “performance” not a “distribution”. However, the court also examined the “distribution” claim, and made a couple of key holdings: (1) The streamed copy on the end-user’s machine is not “fixed” and does not therefore constitute a “distribution”. (2) The licensing agreement language prohibiting broadcast or transmission over an “open or Internet system” did not clearly preclude the closed intranet system. Conflict between the marketing brochure and the licensing language created ambiguity which could be exploited by the library.

DMCA Anti-Circumvention
– Very nice interpretation of the DMCA anti-circumvention: Because UCLA had lawful access to the content of the DVD, their circumvention was okay. Oddly, the Court didn’t look to the DMCA anti-circumvention exemptions.

Fair Use
– Intermediate copying (to put the files on the streaming server) was “incidental fair use”.
– The streaming activities themselves were also analyzed for fair use, in the context of the officials’ qualified immunity. Thus, the Court did not fully assess whether the streaming itself were definitively fair use; only whether they were plausibly fair use. The Court found only that there was at least a strong argument about fair use, and so the officials were not liable for copyright infringement. It is clear, however, that this Court felt the activities were fair use.
The court found that the purpose and nature favored fair use — no discussion at all.

The second factor — the type of work — was neutral because, although these were creative works, they were used in an “informational and educational context”.

The third factor was “slightly” against a finding of fair use because the entire work was streamed: The “time shifting” argument was “compelling” and tipped this toward only weighing “slightly” against fair use.

The fourth factor weighed in FAVOR of fair use because someone watching the streaming DVD in a classroom has no effect on their likelihood of buying.

Overall, this is a very helpful analysis from the perspective of libraries.

Non-Copyright Claims
– The various state common law claims were preempted by federal copyright claims.

The full opinion can be read at scribd.

Google Book Search panel at ALA Midwinter

The ALA’s Copyright Subcommittee (Committee on Legislation) is hosting a panel on the Google Book Settlement at ALA Midwinter this year — Saturday at 1:30 at the Grand Hyatt. (I’m on the committee and on the panel.) Should be interesting.

Come to the Google Book Settlement Session at ALA Midwinter Conference January 24th, 2009, 1:30-3:30, Grand Hyatt, Maroon Peak Room

If you’ll be at ALA’s Midwinter Conference in Denver at the end of January, please check out the session “Google Book Search: What’s In It for Libraries?” The open forum will be hosted by the ALA Committee on Legislation’s Copyright Subcommittee to discuss the proposed Google Book Search settlement. The discussion will take place on Saturday, January 24, from 1:30 to 3:30 p.m. at the Grand Hyatt, Maroon Peak (listed as the Washington Office Breakout Session IV – Google Book Search in the program).

Panelists will include Dan Clancy, Engineering Director for the Google Book Search Project, Karen Coyle, Digital Librarian and Consultant, Paul Courant, Dean of Libraries at the University of Michigan, and Laura Quilter, Librarian and Attorney at Law. The session will be moderated by Nancy Kranich, chair of the COL Copyright Subcommittee. Following brief opening remarks by each panelist, there be an opportunity for dialogue and questions from the audience.

Additional information about the proposed Google Book Search settlement is available at http://wo.ala.org/gbs/.

yaay EFF & Georgia senatorial candidate

Of course, it’s never surprising when the EFF takes on the most challenging issues in technology law, but it was particularly gratifying to see them arguing to overturn the odious telecommunications immunity passed last year. The Machinist at Salon — a blog I’ve been appreciating more and more lately — has a great summary & recap of the issue.

And two for two for Salon.com today, because Glenn Greenwald, who now also blogs for Salon, highlighted today something that did surprise me: Georgia Democratic Senatorial candidate Jim Martin’s principled critique of that legislation.

Go figure. Political candidates can surprise me with something other than the depths of their ignorance and/or pandering and/or willingness to lie outright.

faith-based damages

So this flight attendant is suing a televangelist who assaulted her, and in addition to emotional damages and hemorrhoids, the flight attendant is claiming she is owed damages for loss of faith. Broadsheet, Salon.com, 8/8.

Obviously the First Amendment is going to pose real problems for the plaintiff — American courts establishing a monetary value on religious faith (and loss thereof) seems to pose a real Establishment Clause problem. Entanglement, preferencing religion over non-religion — a fun case.

But if by some miracle this plaintiff prevails on this claim, can we children of fundies get damages for having faith imposed on us as children?

new blizzard decision

how on earth does blizzard keep winning these horrible cases? do they bribe the courts?

Patry covers the new case on software cheats, MDY Industries v. Blizzard.

How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.

To get to its result, the court had to first find that WoW, even though sold over the counter, was licensed not sold. … Having found there was license not a sale, there still had to be a breach of the license in order to permit an infringement action to lie, and recall here that the claim is not one for direct infringement, but rather secondary liability; there was no privity between the parties. There was in fact no provision in the license that barred use of WoWGlider. The court took the extraordinary step of stitching together two unrelated provisions to create one. You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds.

Read all of Patry’s analysis, as well as the opinion.

links from G.B. @ Public Citizen

a good day for basic human liberties

yaay habeas corpus.

Kennedy is the difference between a conservative — someone whose values I frequently dislike and disagree with, but who is in many ways a respectful person — and a proto-fascist.

For the right-wingers who like to throw the term “fascism” around, the core concept of fascism is that the State takes precedence over the Individual. Habeas corpus — the right to appeal imprisonment by the State (to another arm of the State, usually) — is the fundamental human right that distinguishes fascism from non-fascism. Other human liberties — freedom of expression, freedom of belief, freedom of movement — are likely more germane to most of the people most of the time. But habeas corpus is the counter to the most basic power representatives of the State assert: the power to imprison individuals. It’s pretty limited as far as rights go — it boils down to a right to argue with the reasons for imprisonment. But without this fundamental check on the State’s power, every other human liberty is a hollow promise.

Roberts’ dissent — effectively, “what are they complaining about? we treat them so well!” — is the same response that can be heard in any institution that has robbed people of their liberty, from dictators to slaveholders to prison keepers to that horrid Austrian guy who said, “I could have killed my daughter” (instead of imprisoning and raping her for decades).

So yaay habeas corpus. Yesterday’s decision gives me some hope that we may yet arrest our slide into unmitigated fascism.

… a few more thoughts on reading Boumediene v. Bush:

Souter’s concurrence (joined by Ginsburg & Breyer): Souter takes on the dissent’s cries of judicial activism, which essentially argued that the case wasn’t sufficiently politically ripe — that the Supreme Court should have sat on its hands and not rushed to judgment to cut out the proper executive (read: military) procedures. I liked it a lot so I quote in full:

A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years []. Hence the hollow ring when the dissenters suggest that the Court is somehow precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court of Appeals for the District of Columbia Circuit) could handle within some reasonable period of time. See, e.g., post, at 3 (opinion of ROBERTS, C. J.) (“[T]he Court should have declined to intervene until the D. C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee’s case”); post, at 6 (“[I]t is not necessary to consider the availability of the writ until the statutory remedies have been shown to be inadequate”); post, at 8 (“[The Court] rushes to decide the fundamental question of the reach of habeas corpus when the functioning of the DTA may make that decision entirely unnecessary”). These suggestions of judicial haste are all the more out of place given the Court’s realistic acknowledgment that in periods of exigency the tempo of any habeas review must reflect the immediate peril facing the country.
It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. [] The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation. [some internal cites omitted]

gay marriage & Equal Protection jurisprudence

Well, I loved the California same-sex marriage decision. Not just because it granted same-sex marriage, and not just because it said that the state needs to use the same term to refer to same-sex and opposite-sex unions, but because it significantly expanded Equal Protection jurisprudence.

For the non-law-geeks out there, federal and state constitutional guarantees of “equal protection” apply only to certain protected classes (“suspect classifications”), and now homosexuality, in California, gets the highest protection. Here’s how it works. When determining whether a law or action violates equal protection, a court will determine whether (a) a fundamental right is being violated, in which case the court will apply “strict scrutiny”; or (b) what classes of people are being treated differently. If the class is race, the court applies “strict scrutiny”, as it does with violations of fundamental rights. Gender gets “intermediate” scrutiny. The lowest level of scrutiny is a “rational basis review”. If the class has not been deemed a “discrete and insular minority” that has routinely and historically suffered discrimination, then the court applies a rational basis review — a much lower standard of review. Basically, a law that discriminates a class of people is okay under rational basis review, so long as the government has any rational basis for the action. Any law that creates multiple classes is subject, by default, to this review. For instance, “taxpayers” and “non-taxpayers”.

Courts have consistently declined to apply any heightened scrutiny to laws that discriminate on the basis of sexual orientation. Instead, they have applied “rational basis review with bite” — finding that some laws that discriminated against homosexuals did not even have a rational basis. For instance, Colorado’s Amendment 2 failed rational basis review. This is nice on the one hand, because it is an affirmative slap at the law, making it plain that really nasty discrimination is irrational. On the other hand, it makes it very hard to strike down such laws, because it doesn’t recognize the “class-ness” of homosexuality — the fact that gay people are treated as a class and routinely discriminated against.

So the California decision is the first to recognize that gay people are treated as a class and routinely discriminated against. Which means that, in California, we have a lot more protection now. And even if the right-wingers who are freaking out manage to define California’s marriage laws to exclude me and Michele, that won’t undo the strict scrutiny holding.

Ha.

reading: current New Yorker

The current New Yorker (2008/5/12) is chock-full of good stuff:

* Malcolm Gladwell, In the Air, New Yorker. link from MC on closed mailing list

Invention is part of zeitgeist. Many people come up with the same ideas at the same moment — true in her field, my partner says, and it looks true from any study of the history of science.

Also I liked the section toward the end about how the practice of naming discoveries after the putative discoverer is silly at best.

* Tim Wu, Fan Feud, covering the J.K. Rowling / lexicon suit and hearing.

* covering NIN’s decision to release their new album for free on their website

ohohohoh

This is highly amusing. A Constitutional flaw in the way that patent appeals judges have been appointed since 2000 (by persons without authority to do so) threatens to invalidate all the decisions made by a panel that includes a judge appointed since 2000. [My initial hearing of snatches of this made me think there was a problem with the Fed Circuit, which would have been even more hilarious! But this is pretty funny too.]

rotflol …

but seriously, folks, this will never happen. Congress will hastily fix the appointment process and pass a law grandfathering in the eight years’ worth of decisions. The grandfather statute will be challenged, and will be upheld on appeal as a lawful exercise of Congress’ power to regulate commerce. Decisions premised on this problem will be held off or actions stayed until resolution of the dispute.

Charles Miller, a spokesman for the Justice Department, said the government had no comment. “There is really nothing we can say at this time,” he said.

rotfl, rotfl …

But a 1999 law changed the way administrative patent judges are appointed, substituting the director of the Patent and Trademark Office for the secretary of commerce.

And now that Professor John W. Duffy has pointed it out, it’s so completely obvious! Of course the head of the PTO can’t appoint judges. How did nobody ever see this before? … Someone is going to be digging out their notes from nine years ago tonight and going “oh shit….”

teeeheeeheee…. i’m going to be chuckling on and off all the rest of the night.

Duffy paper @ SSRN

Mildred Jeter Loving, RIP

This just in from AP: Mildred Jeter Loving, of Loving v. Virginia, passed away on Friday 5/2.

A longer obit from the NYT. “Mildred’s mother was part Rappahannock Indian, and her father was part Cherokee. She preferred to think of herself as Indian rather than black.” I can’t tell if that was throughout her life, or just at the time of Loving?

“Mrs. Loving stopped giving interviews, but last year issued a statement on the 40th anniversary of the announcement of the Supreme Court ruling, urging that gay men and lesbians be allowed to marry.” (NYT). A longer statement is available at balkinization.

Expelled without a license

Word on the street is starting to trickle in that the popular music was not licensed:

* John Lennon’s “Imagine” was definitely used without permission. The Lennon estate + EMI are suing. (See Reuters, 4/23 (link from pharyngula); the NYT, 4/24; and Paste Magazine. (I can just picture the graphic on The Daily Show: “Ono you di’n’t!”)

* I’m also hearing that The Killers (“Personal Jesus”) didn’t authorize. (See comments on earlier posts.) … And now I’m hearing that they did authorize, but were duped into doing so. See the playlist.

Updates as available.

4/28 update: It looks to me as if copyright infringement was at least anticipated and planned for, and the case that the copyright infringement was an intentional gambit by Premise Media to inspire litigation is considerably stronger: Check out this press release by Premise. They’re trumpeting the litigation, and note that they reference it as litigation by the “beloved Yoko Ono.” Tapping into popular dislike of Yoko Ono — which had significant racist and sexist over-, under-, and in-the-middle-tones — Premise Media continues to demonstrate that they are a class act. Their behavior reflects on the religion they profess and promote, of course.

Other discussions on the issue:
* metamagician
* Lippard Blog

Expelled copyright infringement, cont’d

update 4/16: Both a commenter here and also P.Z. Myers have reported that Expelled filmmakers Premise filed on Monday a DJ (“declaratory judgment”) motion on XVIVO‘s copyright claims against them — i.e., asked a judge to look at the evidence & say that they are not infringing. Premise v. XVIVO, N.D. Tex., 4/14/2008.

Here are links to the PDFs of the
* complaint , and
* the statement of interested parties.
And may I just note that PACER is a pain in the ass?

Also via that same post @ pharyngula, Sarah S @ ERV reports that they copied not just the XVIVO video but other sources as well. Quel surprise.

Previous posts:
* Copyright claims against Expelled
* “Expelled” music licensed or not?

Thoughts on reading the complaint below the fold:
Continue reading

roommates.com: no 230 safe harbor for discriminatory housing ads

Just saw that the 9th Circuit has issued its en banc opinion finding that Roommates.com is not eligible for Section 230 immunity for discriminatory postings. Haven’t read it yet.

Decision at up at the 9th Circuit website. Opinion by Kozinski, who usually gets this stuff so maybe it’s not too bad.

link from eric goldman

Continue reading

mostly information law news round-up

* Judge White withdrew his order requiring the shutdown of wikileaks.org. See also 3/1 bits blog. (NYT 3/1)

* The music industry has yet to pay artists any of the money it has received in settlements and lawsuits; the artists are pissed. NY Post 2/27)

* The owners of the game scrabble are pissed off at Scrabulous. (NYT 3/2)

* Daniel Solove’s new book, The Future of Reputation, is available online with a creative commons license, thanks to Yale University Press. Annoyingly it’s chapter-by-chapter. badgerbag read it and promises a scathing review, so I’m looking forward to seeing what she has to say.

* Clay Shirky’s new book, Here Comes Everybody, has a hold list at least 3-deep at the Boston Public Library. )-8

* Paul Cash, the principal of Burleson High School in Burleson, Texas, is censoring the school yearbook’s article about students who are also parents, in part because it conflicts with the school’s “abstinence-only” education program. A program that was, umm, manifestly not successful. As illustrated by the kind of head-in-the-sand attitude that seems to think that if only the principal can censor the yearbook, he can change reality, or lie to the community about it. “I believe that as principal of the school it is my obligation to make sure that whatever our students put into press accurately reflects the ideals and values of the community.” Apparently the students think that the press should reflect reality. I guess the teachers have been doing their jobs. Student Press Law Center has the scoop (2/13). (link from pharyngula, 3/2)

* Schwarzenegger’s administration is defending California’s gay marriage ban before the California Supreme Court; a ruling is due by June. There’s a certain gross irony in this: A couple of years ago, Schwarzenegger vetoed a gay marriage act passed by California’s legislature, saying that this was something that should be left to the courts. That was itself yet another proof that the so-called federalist style of conservatism is really just window-dressing outcome-based politicking as principled ideological opposition to particular forms of government. (SJ Mercury, 3/2)

* Some people in Namibia are worried that schools and libraries are getting away with too much using information, so they’re starting a new copyright enforcement body just to go after the lucrative school and library market. Watch out for the Namibian Reproduction Rights Organization (NamRRO), which isn’t enforcing any rights to reproduce that I’d like to see enforced: The rights to reproduce for fair use, the rights to reproduce or not to reproduce biologically …. The organization is being started by “Moses Moses”, whose name seems a little reproductive itself. Good idea, Moses; way to start killing creativity at the most upstream possible place. (All Africa, 2/29)

* In Illinois, reproductive rights are being upheld: A very silly law that attempts to mandate good parent-child relationships and communications, specifically requiring that pregnant minors must tell their parents if they are having an abortion, continues to be enjoined. A “pro-life” group described the decision as, “a major defeat for the people of Illinois,” apparently forgetting that teenagers are people too. (AP 3/1)

* Heather Morrison at her awesome blog “Imaginary Journal of Poetic Economics” has pointed out that plagiarists should avoid open access like the, ah, plague, since it’s so much harder to catch them without open access. Peter Suber at Open Access News gathered several of her related posts in one excellent introduction to Morrison’s concept, “aiming for obscurity”. Read it or wish you had.

* Rebecca MacKinnon reviews the latest round of lawsuits against Yahoo! by Chinese dissidents who, among other things, got screwed over by Yahoo!’s release of their information. (RConversation, 3/3)

Johnson & Johnson sues the Red Cross

give it up already. we all know that the red cross means the Red Cross.

It’ll be interesting to see a major company actually litigate such a completely jury-unfriendly case. It will also be interesting to see if how licenses for intellectual “property” survive when the property — in this case, consumer identification of a mark — no longer exists. Or, at least, when consumer identification of the mark is much stronger with the “licensee” than the “licensor”.

good news in SCO case

The District Court of Utah has issued a decision and order finding that SCO does not own parts of Linux (D.Utah 2007/8/10). The lengthy litigation (funded in part with Microsoft’s investments in SCO) was the only serious shadow hanging over Linux, although the claims seemed bogus when examined closely. (I also liked this chart that geekly picked over the possible harms to linux.) It’s good to see Judge Dale Kimball come to the same conclusion.

The D. Court of Utah website was down yesterday and for some reason has labeled all SCO filings and orders as available only through PACER (a fee-based access service to public court filings). However, groklaw posted the decision.

9th Circuit again: P10 v. Google

The Ninth Circuit has weighed in on Perfect 10 v. Google (captioned Perfect 10 v. Amazon.com on the 9th Circuit case download website). The opinion is by Ikuta, who (IMO) got it right on the Fair Housing Council decision yesterday. It’s a long opinion, and I’m still working through it. But here’s a summary of holdings from my first quick scan:

  • Liability for thumbnails — P10 made out a prima facie case of direct liability for Google’s display of thumbnails (affirming lower court) (but see fair use below)
  • No direct liability for display on linking to full-size images (affirming lower court): Specifically,

    “While in-link linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion.” (at 5772, pdf p.19)

  • No direct liability for display of cache (affirming lower court)
  • No direct liability for distribution of full-size image (affirming lower court) (distinguishing Hotaling v. LDS (4th 1997) & Napster)
  • Fair use for thumbnails & vacated preliminary injunction for Google’s thumbnails (reversing lower court)
    • purpose & character of the use: Google’s use was so highly transformative (“significantly transformative nature of Google’s search engine, particularly in light of its public benefit” at 5782/PDF p.29) that it outweighs superseding & commercial uses; the superseding uses were trivial because no evidence that downloads for mobile phone use had taken place. District Court’s determination that use of thumbnails in AdSense partner direction was not significant. Instead of weighing “slightly” in favor of P10 as the District Court found, this favor weighs for Google. (reversing Dist Ct)
    • nature of the copyrighted work: photos were creative but previously published; this factor weighs “only slightly” to P10 (affirming Dist Ct)
    • amount & substantiality: did not weigh in favor of either party because reasonable in light of the purpose of a search engine (affirming Dist Ct)
    • effect on the market: no effect of thumbnails for full-size images (affirming Dist Ct); effect of Google’s thumbnails for P10′s cell phone market “remains hypothetical”; so this factor favors neither party (reversing Dist Ct)
  • Possibility of contributory infringement & enunciated a new test (reversing & remanding) Citing Grokster, Napster, and Netcom, the court found the Dist Ct had erred in assuming that Google did not materially contribute to infringing conduct.

    “Applying our test, Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10′s copyrighted works, and failed to take such steps.” (at 5793 / PDF p.40)

    Remanded for consideration of “whether Perfect 10 would likely succeed in establishing that Google was contributorily liable for in-line linking to full-size infringing images under the test enunciated today.”

  • No vicarious liability (affirming District Court)
  • Remand to do DMCA 512 analysis: The 9th said because there is now a possibility of contributory infringement, the District Court now has to do the DMCA 512(d) analysis to see whether Google met the qualifications for takedowns. The issues are whether, as P10 alleges, Google was not expeditious in takedown; and whether, as Google alleges, P10′s notice was not sufficient and did not comply with provisions.
  • Amazon.com: No direct infringement for linking to Google’s thumbnails or P10′s fullsize images, and no vicarious liability (affirming District Court). However, the Napster “knowledge” test (“actual knowledge that specific infringing material is available using its system”) popped up here as in Google, and so 9th remanded to consider this contributory infringement and the DMCA safe harbor.

….update 5/18: Thinking about the decision some more, I still really appreciate the “public benefit” aspect of the language that I previously highlighted. Probably not something that most artists will be able to rely on, but very helpful for information and indexing resources — so librarians can breathe a sigh of relief.

Various other scholars & interested parties have pointed out their own highlights:

  • Eric Goldman posted a brief comment on the case, pointing out that the court held that a plaintiff must disprove fair use, which Joe Gratz also pointed out. I was also amused to see his take on the case as difficult to teach.
  • Joe Gratz listed several points of interest, including the public interest point that I like.
  • John Ottovani posted also, pointing out that the court clarified that Section 512 is available for direct as well as contributory infringement. Hmm.
  • Jason Schultz @ EFF calls the decision a “huge victory” and parses out some of his insights.
  • Rebecca Tushnet points out the possible significance of footnote 8 for the Google Booksearch lawsuit, and also speculates on the transformativeness of search engines versus parodies.
  • The Washington Post covered the case too.

Roommate.com reversed

The Ninth Circuit reversed the lower court in Fair Housing Council v. Roommate.com, limiting Section 230. Section 230 is the federal statute that immunizes online services providers for their users’ content. Most courts have construed Section 230 broadly, protecting ISPs against all sorts of liability. Intellectual property is (surprise) specifically exempted.

In this case, the Fair Housing Council sued Roommate.com for violations of the Fair Housing Act, which prohibits housing advertisements that state discriminatory preferences. The lower court held that Roommate.com, as an online provider, was immunized by Section 230 for postings on its service that allegedly violate the Fair Housing Act’s discriminatory housing ads prohibition.

The Ninth Circuit’s opinion, written by J. Kozinski, distinguished Roommate.com from a protected service based on three main features:
* Roommate.com shaped its users’ input with a form questionnaire that specified gender, sexual orientation, and with-children choices;
* Roommate.com’s search mechanism which has the same pulldown search options (gender, sexual orientation, and with-children);
* Roommate.com emails people with listings based on profile preferences (gender, sexual orientation, and with-children)

J. Reinhardt would have also held Roommate.com liable for the discriminatory content posted by users in the comments section, but the majority held that that information, which was not solicited by nor built into the search engine, was not Roommate.com’s responsibility.

J. Ikuta dissented from liability, and would have followed Carafano finding broad immunity even on the form submission.

… So what does it mean? My quick take is this:

First, readers will probably be familiar with these issues from the Craigslist case, and concerned about the 7th Circuit appeal. In my opinion, this case can be reconciled with the decision in the Craigslist case (ND Ill, a 7th Circuit court). This decision expressly held that the “no parameters” forms that are just open-ended do not create liability, and Craigslist.com’s housing forms are primarily open-ended: address, rent, cats/dogs. That decision is on appeal to the 7th Circuit. Should the 7th Circuit elect to address this aspect of the decision, that’s a fairly clear distinction to make. The 7th Circuit need not address this, though, because both the search & the email features that Kozinski brought up really hinge on the structured data input, which is the only real point of distinction between a “content provider” and a “content service”.

Second, despite Kozinski’s dancing, the case will be harder to reconcile with Carafano v. Metrosplash.com, a 2003 9th Circuit case that considered defamation & privacy liability for an online personals service that set up forms for publishing user input. (Carafano, 339 F.3d 1119.) In particular, it adds some weight and significance to the distinction between an “ICP” and an “ICS” (information content provider and interactive content service, respectively).

Third, the decision’s major point of distinction between Carafano and this case was that the ISP established policies. So establishing policies that reiterate the law will be key for ISPs in the wake of this decision. Kozinski stressed that the service in Carafano did not solicit the problematic information and in fact expressly forbade some aspects of it. So, under this decision, establishing policies that reiterate the law will go some way toward protecting an ISP. While this isn’t the worst outcome for a speech-related law, it seems (to me) to be a waste of time, and I’d point out that it burdens ISPs with educating their users about the law. This sort of burden is, to my mind, inconsistent with notions of ISPs as “utilities”, and also inconsistent with the broad, unfettered access to communications that the First Amendment contemplates.

Fourth, I imagine that this case will be used by all who seek to limit Section 230′s broad immunity for ISPs. Whether the case constitutes a high-water mark for limitations on that liability immunity, or merely a beachhead, remains to be seen.

update: Eric Goldman analyzes the decision at greater length, and you can get the flavor from the title “Ninth Circuit screws up 47 USC 230″.

PS – More on the FHA: I always think about, and rarely remember to point out, that one of the contested categories is sexual orientation, which isn’t included in the Fair Housing Act, although various state anti-discrimination codes do include it. Some people have also been confused about the roommate exception, which permits discrimination by roommates for shared-housing situations. If you lease a room in your apartment or house, for instance, you can discriminate on religion, etc. (Although shared-housing people can discriminate, advertising those discriminatory preferences is not protected.) So, generally, commercial landlords may not discriminate on race, sex, familial status, etc. (but they can discriminate on sexual orientation); shared-housing lessors may discriminate; advertising discriminatory preferences is prohibited, period. (But, again, advertising preferences against or for sexuality would be okay under the FHA.)