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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

John Green v. America Online and John Does 1 and 2

318 F.3d 465, No. 01-1120 (3rd Cir., January 16, 2003)

Affirming the decision of the court below, the Third Circuit holds that the Communications Decency Act ("CDA") immunizes America Online ("AOL") from claims arising out of the transmission by unrelated third parties in an AOL chat room of (i) a "punter program", which disrupts the operation of the recipient's computer, and (ii) defamatory messages concerning the plaintiff.  The Third Circuit further holds that AOL's allegedly negligent failure to prevent such events from occurring did not breach its Member Agreement, in which it expressly disclaimed liability for the transmissions of others.

Plaintiff is a customer of AOL who agreed to the terms of its Member Agreement, which governed his use of AOL's services and equipment.  AOL is an Internet Service Provider.

Plaintiff claimed that John Doe 1, a third party not affiliated with AOL, sent plaintiff a "punter" program in an AOL chat room, which caused plaintiff's computer to freeze.  Plaintiff further claimed that John Doe 1 and/or 2 defamed him both in messages posted in an AOL chat room, and by impersonating him in that chat room.  Plaintiff alleged that AOL negligently failed to prevent this activity, despite having received notice thereof from plaintiff.

AOL moved to dismiss plaintiff's complaint, arguing that it was immunized from the tort claims asserted therein by the CDA.  The Third Circuit agreed, and affirmed the dismissal of plaintiff's tort claims.  47 U.S.C. § 230(c)(1) provides: 

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.

Plaintiff's claims sought to hold AOL liable for its role in the publication and/or transmission of this information by third parties.  Such liability was precluded by application of the CDA.  Said the Third Circuit: 

There is no real dispute that Green's fundamental tort claim is that AOL was negligent in promulgating harmful content and in failing to address certain harmful content on its network.  Green thus attempts to hold AOL liable for decisions relating to the monitoring, screening, and deletion of content from its network - actions quintessentially related to a publisher's role.  Section 230 "specifically proscribes liability" in such circumstances. 

In reaching this conclusion, the Third Circuit held that a "punter" program was "information" falling within the ambit of the CDA, which provides protection for liability arising out of "information provided by another . . .".

The Third Circuit further held that AOL did not breach its Member Agreement by failing to stop the Doe defendants from continuing their misdeeds, or protecting plaintiff therefrom.  Quite the contrary, AOL had expressly disclaimed liability for content provided by third parties.  The Court reached this conclusion notwithstanding the fact that AOL reserved to itself the right to remove messages based on their content.

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