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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...

Message Boards - Online Discussion Groups - Internet Library of Law and Court Decisions - Updated March 25, 2008

373 F.3d 544 (4th Cir., June 21, 2004)

Fourth Circuit holds that web site operator is not guilty of direct copyright infringement as a result of the posting on its site by third parties of images of commercial real estate in which plaintiffs hold the copyright.  In reaching this result, the Court reaffirms the validity of Religious Technology Center v. Netcom, which holds that a party must engage in "volitional conduct" that contributes to the infringement to be liable for direct copyright infringement. 

Importantly, the Court reached this result notwithstanding the fact that defendant's involvement in the posting of images to its site was not completely passive - rather defendant conducted a limited screening of all images presented by third parties to determine if they should be posted, eliminating those that either 1) exhibited obvious evidence of copyright infringement (such as a copyright notice in someone other than the poster) or 2) did not depict commercial real estate.

In a strong dissent, Circuit Judge Gregory argued that because of this gatekeeping activity, defendant's actions were not passive and thus were not entitled to protection under Netcom.  According to Judge Gregory, Netcom protects a defendant only when its involvement in the copying of copyrighted work is passive, and the automatic result of the operation of its facilities by a third party.

433 F. Supp. 2d 523 (E. D. Pa., May 26, 2006), aff'd., No. 06-3171 (3rd Cir., September 19, 2007).

Communications Decency Act immunizes operator of message board from defamation claims arising out of posts appearing thereon that were authored by others.  Such immunity extends to the defendant operator notwithstanding plaintiff’s claim that the defendant edits posts that appear on his boards, and selects posts that will either be published thereon, or removed therefrom.  The Court accordingly dismissed with prejudice defamation claims asserted by plaintiff Anthony DiMeo III arising out of offensive postings that appeared on defendant’s message boards. 

The Court also dismissed plaintiff’s claim that defendant violated the criminal statute 47 U.S.C. § 223 (a)(1)(C), which prohibits use of a telecommunications device anonymously to harass another.  Defendant neither acted anonymously – his name appeared both in the domain name and title of the message boards found on his website – nor did he use a telecommunications device, within meaning of the statute, in operating his web site.

Analysis of the Third Circuit's decision can be found below in the Quick Hits section of this page.

165 Misc. 2d 21, 626 N.Y.S. 2d 694 (Sup. Ct. N.Y.Co. 1995)

Court held that defendants, which, for a fee, provided its customers with a wide range of services, including access to the Internet as well as bulletin boards, news and stock quotes, did not violate Howard Stern's right to publicity under N.Y. Civil Rights Law §§ 50 and 51 by utilizing a photo of Stern, as well as his name, to advertise a bulletin board "debate" discussing the merits of Stern's candidacy for governor. Such use was permitted because under N.Y. Civil Rights Law §§ 50 and 51 defendant was viewed as news disseminator which was using Stern's likeliness to advertise a news product -- its bulletin board.

309 F.Supp.2d 446, Civ. 02-5164 (DRH) (WDW) (E.D.N.Y., Mar. 25, 2004)

Court holds that plaintiff, by clicking an "I accept" icon agreeing online to be bound by the Terms of Service governing use of an online discussion group set forth in a scrollable window, viewable ten lines at a time, was bound by the forum selection contained therein.  Finding such a clause enforceable, the Court dismissed a claim brought by plaintiff asserting that defendant Google breached this agreement, because this claim was not brought in the designated forum.

The Court also held that Section 230 of the Communications Decency Act ("CDA") immunized an ISP hosting an online discussion group from claims that its failure to remove objectionable content posted on the discussion group's web page gave rise to claims of tortious interference with contractual relations. 

Finally, the Court denied the motions of two additional defendants to dismiss the claims asserted against them for want of personal jurisdiction.  The Court held that the first defendant was subject to specific jurisdiction in New York because of its operation of a commercial website via which it sold $6000 of products a year to New York residents.  The second defendant was similarly subject to suit because he had entered into a contract with a New York company, which contract allegedly gave rise to the claims asserted against him.

179 Misc.2d 903 (Criminal Crt., City of NY, February 9, 1999)

Court holds that posting a threatening message to an Internet newsgroup, which is read by the person threatened, constitutes Aggravated Criminal Harassment in the Second Degree in violation of New York Penal Law Section 240.30.  The Court accordingly denied defendant’s motion to dismiss this charge, which accused defendant of posting a death threat against complainant on an Internet newsgroup.

839 F.Supp. 1552 (M.D. Fla. 1993)

In this case, Playboy charged the defendants, operators of a bulletin board system, with copyright and trademark infringement, as well as unfair competition. Defendants' bulletin board system is accessible via telephone modem to subscribers. Subscribers uploaded onto the bulletin board various pictures published by Playboy to which Playboy owned the applicable copyright. In addition, these subscribers, in the description of the material they provided other bulletin board users, utilized Playboy's trademarks Playboy and Playmate. Lastly, in some instances, Playboy's trademark was removed from the photograph, and replaced with the name of the bulletin board service and its telephone number.

On these facts, the court granted plaintiff's motion for partial summary judgment, finding defendants guilty of copyright and trademark infringement, as well as unfair competition. The court reached such conclusion notwithstanding defendant Frena's claim both that he did not upload the images onto his bulletin board system (subscribers did) and he was unaware of the presence of such images on his service until such time as he was served with the summons and complaint in this action, at which time he caused them to be deleted.

478 F.3d 413, No. 06-1826 (1st Cir., February 23, 2007)

Court dismisses cyberstalking and security law claims advanced by plaintiffs under Florida state law against defendant Lycos, holding such claims barred by the immunity afforded Lycos under Section 230 of the Communications Decency Act (“CDA”).  Such claims arose out of statements critical of plaintiff Universal Communication Systems (“UCS”) and its CEO, Michael Zwebner, that were posted by third parties on a message board found on a website operated by Lycos at the domain Raging  Plaintiffs claimed that defendants, including Lycos, were involved in a scheme to manipulate plaintiff’s stock price.  Plaintiffs claimed that defendants shorted UCS stock, and then posted derogatory comments on in an attempt to drive the stock price down.  Such a claim, held the court, sought to hold Lycos liable for its role in the publication of these statements, which were authored by third parties, and as such was barred by operation of the CDA.  The cyberstalking claim was similarly barred because the act on which such claim rested was the publication of derogatory statements on the message board authored by third parties.  As such, this claim too, sought to hold Lycos liable for its role in the publication of such statements, and was barred by application of the CDA. 

The court also dismissed federal cyberstalking claims asserted by plaintiffs against Lycos under 47 USC Section 223, holding that this statute did not create a private right of action for a civil suit.

Finally, the Court dismissed trademark dilution claims advanced by plaintiffs under Florida state law.  These claims were premised on the use of UCS’ trademark as the name for a message board on Raging at which third parties posted statements critical of plaintiffs.  The Court held that, despite the fact that the message boards contained advertising, such a use did not constitute the requisite use in commerce of plaintiffs’ mark.  In addition, such use of plaintiffs’ mark to describe a message board that contained statements about plaintiffs was not actionable under the dilution act.

Quick Hits

Tammy S. Blakey v. Continental Airlines, Inc., et al.,
164 N.J. 38, 751 A.2d 538 (Sup. Ct. N.J., June 1, 2000).

Reversing the courts below, the New Jersey Supreme Court holds that employers have a duty to take effective measures to stop sexual harassment that occurs in an online work-related chat room or bulletin board of which they have notice.  Said the Court:  “[W]e find that if the employer had notice that co-employees were engaged on … a work related forum in a pattern of retaliatory harassment directed at a co-employee, the employer would have a duty to remedy that harassment. … To repeat, employers do not have a duty to monitor private communications of their employees; employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace.” 

The Supreme Court further held that out-of-state employees who posted allegedly defamatory and harassing messages on an online bulletin board about a non-resident co-employee may be subject to jurisdiction in New Jersey if such posts were intended to dissuade that co-employee from pursing a New Jersey action seeking redress under the New Jersey Law Against Discrimination.

Issues of fact precluded the court from resolving either question in the case at bar, and the Supreme Court accordingly remanded the case to the trial court for further consideration.

This action arose out of various posts made by plaintiff’s co-employees on an online forum made available to such employees for discussion of issues of concern to them.  This forum was provided as an added benefit by Compuserve, which was engaged by Continental to provide its employees access to a company computer system on which work related information, such as employee flight schedules and assignments, were available. 

After plaintiff brought a sex discrimination lawsuit against Continental in Washington, her state of residence, various company employees made posts to this forum critical of plaintiff’s work performance, and her decision and motivation for bringing her lawsuit.  Plaintiff gave notice to Continental of these posts, and her objections to them.  Plaintiff commenced this suit in New Jersey against both the posters and Continental, asserting, inter alia, claims of defamation and sexual harassment/hostile work environment.

The Supreme Court reversed the decisions of the lower courts, which had dismissed the action.  On the record before it, the Court could not determine whether the forum in which the comments were made was “sufficiently integrated with the workplace to require” Continental to police harassing activities that occur therein of which it has notice.  The resolution of this question turned on “whether the Crew Members Forum was sufficiently integrated with Continental’s operations so as to provide a benefit to it.”  It should be noted that the reach of the court’s ruling extended beyond the Continental workplace proper, to “settings that are related to the workplace.” 

Similarly, the Supreme Court held that issues of fact as to the out-of-state employees’ knowledge as to whether plaintiff had commenced a suit in New Jersey precluded a determination as to whether the court could exercise personal jurisdiction.  As stated above, for New Jersey to exercise such jurisdiction, the effects of these employees’ conduct must be felt in New Jersey.  Plaintiff was a Washington resident who had commenced a discrimination suit against Continental in Washington.  If the defendant co-employees sought to dissuade her from prosecuting a New Jersey discrimination suit with their comments, they would be subject to jurisdiction in New Jersey.  However, it was unclear from the record if the defendants knew plaintiff had commenced suit in New Jersey, as opposed to Washington, and accordingly the case was remanded for further consideration.

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ComputerXpress, Inc. v. Lee Jackson, et al.
93 Cal.App.4th 993, 113 Cal.Rptr.2d 625, E027841 (Cal. Court App., 4th District, Nov. 15, 2001).

Court dismisses trade libel and other claims brought by plaintiff ComputerXpress Inc. arising out of defendants’ publication of statements critical of plaintiff, its products, and its management on Internet message boards under California’s SLAPP (“strategic lawsuit against public participation”) statute, Cal. Code of Civil Procedure section 425.16.  This statute obligates a plaintiff that commences a suit arising out of “an act in furtherance of [defendant’s] right of petition or free speech … in connection with a public issue …” to demonstrate a prima facie case before being permitted to proceed with suit.  If the plaintiff fails to meet this burden, his claim will be subject to dismissal on a special motion to strike.  “Acts in furtherance of a person’s right of petition or free speech” under the Statute include “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.”

The Court held that statements published on Internet message boards such as that at issue – Raging Bull – are statements published in a public forum within the meaning of California’s SLAPP statute.  The Court further held that statements concerning a public company and its business, which may affect numerous investors, are statements in connection with an issue of public interest.  As such, held the Court, the defendants were entitled to the protections of the SLAPP statute.

Finding that ComputerXpress failed to present sufficient evidence to establish a prima facie claim, the Court dismissed so much of its complaint that rested on the Internet postings at issue.  The Court rested its determination, in part, on its conclusion that the challenged statements were non-actionable statements of opinion.  “[W]hile the postings certainly could be considered disparaging, their tone and content identified them as statements of opinion and not fact.  …. [T]hey were hyperbolic, informal, and lacked the characteristics of typical fact-based documents.  Moreover, they were replete with explicit statements of opinion such as “IMO (in my opinion) “what I think is fraud” “I firmly believe” “is that fraud?” and “my guess is.”

The Court did allow plaintiff to proceed with fraud and interference with contractual relations claims arising out of independent acts unconnected with the challenged Internet postings at issue.  These claims arose out of disparaging statements made by defendants to a particular customer of ComputerXpress, as well as out of purported misrepresentations defendants made concerning their own business at a time plaintiff was considering its acquisition.  As to these claims, defendants’ motion to strike was denied.

Finally, the Court held that defendants were entitled to recover under California’s SLAPP statute those attorneys fees they had expended in moving to dismiss the claims on which they prevailed, but not those fees expended in moving to dismiss the remainder of the complaint.  Such an award was rendered pursuant to section 425.16(c) which provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”  Said the Court: “Defendants consequently are entitled to recover attorney fees and costs incurred in moving to strike the claims on which they prevailed, but not fees and costs incurred in moving to strike the remaining claims.”

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Anthony DiMeo III v. Tucker Max
No. 06-3171 (3rd Cir., September 19, 2007).

Affirming the decision of the court below, the Third Circuit holds that plaintiff’s claim for defamation, arising out of the posting of derogatory comments authored by third parties about plaintiff on a message board operated by the defendant, were barred by application of the Communications Decency Act, 47 U.S.C. Section 230.

To qualify for the statute’s protections, the defendant must be a “provider or user of an interactive computer service” and the claim must seek to treat him as “the publisher or speaker” of content “provided by another information content provider.”  Such, held the Third Circuit, was the case here.  By making available message boards on his website, Max was a provider of an interactive computer service.  Said the Court: “Max’s website is an interactive computer service because it enables computer access by multiple users to a computer server.”  Similarly, because the complaint did not allege that Max himself was the author of the offending posts at issue, they were content provided by another information content provider.  And finally, by asserting a defamation claim against Max, plaintiff sought to hold him liable as the publisher of this content.  Having made the showing necessary for immunity under Section 230 of the CDA, the Third Circuit affirmed the dismissal of plaintiff’s defamation claim.

The Third Circuit also affirmed the district court’s denial of plaintiff’s motion for leave to amend his complaint to assert claims for intentional infliction of emotional distress, and RICO violations, on the grounds of futility.  The former failed because the CDA afforded Max immunity from such claims, which, like the defamation claims, arose out of the posting by third party of offensive comments on a message board operated by Max.  The later failed as a result of plaintiff’s failure to allege the commission of any of the requisite criminal predicate acts.

It should be noted that the Third Circuit denoted its opinion non-precedential.

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