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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...

Sidney Blumenthal, et al. v. Matt Drudge and America Online, Inc.

992 F. Supp. 44 (D.D.C. April 22, 1998)

Defendant Drudge is the author of a gossip column focusing on gossip from Hollywood and Washington D.C. entitled "the Drudge Report." Drudge published his report on his own web-page, and sent each new edition via e-mail to subscribers. Drudge had contracted with defendant America Online Inc. ("AOL") to make his report available to AOL users in exchange for a monthly payment of $3000. Under this agreement, AOL was also permitted to remove content of the report that violated AOL's terms of service. To promote this service, "AOL issued a press release making clear the kind of material Drudge would provide to AOL subscribers -- gossip and rumor -- and urged potential subscribers to sign onto AOL in order to get the benefits of the Drudge Report."

Drudge prepared a report which contained allegedly defamatory statements about plaintiffs including the following: "new White House recruit Sidney Blumenthal has a spousal abuse past that has been effectively covered up." AOL had no part in creating the content found in this report.

Plaintiffs sued, alleging that defendants' conduct constituted defamation. Defendant AOL moved for summary judgment, arguing that plaintiffs' claim against it was barred by Section 230 of the Communications Decency Act ("CDA"). The court agreed, and dismissed the claims against AOL.

Said the court: whether wisely or not, [Congress] made the legislative judgment to effectively immunize providers of interactive computer services from civil liability in tort with respect to material disseminated by them but created by others. ... Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others. While Congress could have made a different policy choice, it opted not to hold interactive computer services liable for their failure to edit, withhold or restrict access to offensive material disseminated through their medium.

Plaintiffs argued that AOL should be held liable for its role in the publication of the Drudge Report because it had reserved the right to exercise control over its editorial content, and further, by promoting the report as a gossip column, was aware of the nature of the report's general content and the risks inherent therein. The court, while sympathetic to this argument, held that it was nonetheless constrained by Section 230 of the CDA to rule in favor of AOL.

Why should AOL be permitted to tout someone as a gossip columnist or rumor monger who will make such rumors and gossip 'instantly accessible' to AOL subscribers, and then claim immunity when that person, as might be anticipated, defames another? If it were writing on a clean slate, this Court would agree with plaintiffs. ... But Congress has made a different policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others.

Defendant Drudge, a California resident, also moved to dismiss the action on the ground that the D.C. federal court lacked personal jurisdiction over him. The court denied his motion. Drudge had sent the allegedly offending report to AOL, his subscribers and his website electronically from his California residence. This out-of-state activity caused injury to plaintiffs within the forum, as it injured their reputation there. As such, the court could exercise jurisdiction over defendant Drudge if he engaged in a persistent course of conduct in Washington D.C.

The court found that Drudge's contacts with D.C. were sufficient to constitute a persistent course of conduct there. In reaching this conclusion the court relied on the combination of Drudge's maintenance of an interactive website available to D.C. residents, his solicitation from D.C. residents of donations to defray publication costs, Drudge's receipt of $250 in donations from approximately 15 D.C. residents, his mailing of his report to a subscription list, his appearance in D.C. on one occasion to promote his report, and Drudge's contacts with forum residents via telephone and US mail to obtain gossip.

Of interest, the court found that Drudge's website was interactive because it invited users who wished to receive a regular subscription to e-mail such a request via a mechanism made available on the site for that purpose. Users who sent such e-mail subsequently received each subsequent edition of the Drudge report.

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