TechLaw

Justice Sotomayor's Potential Cyberlaw Influence? Not Much

It was pleasant to note the other day that Judge Sonia Sotomayor, President Obama's choice for Associate Supreme Court Justice, has written a few opinions relating to Internet law during her time as judge in the lower federal courts. A first, apparently, and a sign of the centrality of the Internet in our business and personal affairs. From now on, the high court nominee who doesn't have a few cyberlaw decisions on his or her resume will be the remarkable case.

But does a Justice Sotomayor mean anything for the future direction of the laws that regulate online activity? No, not really. Not in the near future.

Consider this:

The Supreme Court has never reviewed a case involving the Computer Fraud and Abuse Act.

The Supreme Court has never reviewed a case involving the Electronic Communications Privacy Act.

The Supreme Court has never reviewed a case involving Section 230 of the Communications Decency Act (which gives interactive computer services immunity from most claims arising from the publication of third-party content), though it did consider, and strike down, the prohibitions against indecent online speech contained in another part of the CDA in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

The Supreme Court has never reviewed a case involving the CAN-SPAM Act or the Digital Millennium Copyright Act.

The Supreme Court has never reviewed a case involving electronic contracting, jurisdiction arising from online activities, cybersquatting or any other domain name-related dispute.

Aside from Doe v. Chao, a case involving standing to sue the federal government under the Privacy Act, the Supreme Court has never taken a case involving online privacy or security (GLB, COPPA, FTC Act, you name it). If you want to count Bartnicki v. Vopper, go ahead, though I don't think that obscure decision in any way undermines the point I am trying to make here.

So that covers that vast majority of what I consider to fall under the general heading of cyberlaw. None of it is even on the Supreme Court's radar. And I don't see that situation changing anytime soon. The Web is a welter of contracts (a state law issue), and all of the afore-mentioned statutes need many more years of intermediate appellate scrutiny before they'll make good candidates for Supreme Court review. Sure, there are plenty of prosecutorial and judicial missteps to feed our blogs. But, as the Supreme Court often reminds us (see Rule 10), the Supreme Court is not in the business of correcting erroneous applications of settled law.

What's left? Copyright, patent, and First Amendment law. The last (and only) time the high court decided a digital copyright case was Metro-Goldwyn-Mayer Studios Inc. v. Grokster, 545 U.S. 913 (2005), a case in which Justice Souter (whom Judge Sotomayor will replace) wrote for a unanimous court that Grokster, a distributor of peer-to-peer file-sharing software, was a secondary infringer of the movie studios' copyrights. Not only did Grokster lose the case, but it inspired the high court to create a new theory of secondary liability -- "inducing" copyright infringement -- along the way. Given the apparently entrenched views already on the court, Judge Sotomayor's ascent to the Supreme Court offers little hope of benefiting copyright fair use advocates anytime soon, if at all.

First Amendment issues have traditionally been a leading source of Supreme Court activity, and it is not too far-fetched to imagine high court review of a case involving a federal government (FCC?) attempt to impose broadcast-style regulation on Internet transmissions. Here alone, I think, we have an area where Judge Sotomayor could exert some influence on cyberlaw issues. Without question, the Internet would be a far different -- and worse -- place if Reno v. American Civil Liberties Union had come out the other way. On First Amendment issues, Judge Sotomayor appears to have a rather unremarkable though liberal-leaning view of the First Amendment. About the same as the departing Justice Souter. No gain or loss for free speech proponents.

That leaves patents. In re Bilski, No. 08-964 (certiorari petition filed Jan. 28, 2009), is an important case in which the Federal Circuit curtailed the patentability of software-implemented business methods. According to SCOTUSBlog, there is a good chance the Supreme Court will grant review of the Bilski decision. Bilski was up for discussion yesterday at the Supreme Court's private cert-consideration conference, so we could know as early as Monday if Judge Sotomayor will have that one facing her in the fall. I have no idea what Judge Sotomayor's views are on the patentability of software-implemented business method patents, and I don't think anyone else does either. The Inventive Step blog unearthed a couple district court decisions. Not much there to go on.

Feel free to e-mail me (as usual) all the cases I've missed!

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Five Post-Roommates.com Decisions Confine Immunity Exception to Narrow Circumstances

When the en banc Ninth Circuit decided Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d (1157 (9th Cir. 2008), a case in which the court held that a Web site could be liable as an "information content provider" of unlawfully discriminatory content that users were required to submit to the site, the prevailing view among publishers' attorneys was that they could live with it.

Speaking at a conference several months after the Roommates.com decision, Barbara W. Wall, vice president and associate general counsel, Gannett Co. Inc., said that she was “heartened” by the Roommates.com decision, rather than seeing it as a “threat” to online publisher protections created by Section 230 of the Communications Decency Act. By requiring answers to its profile-building questions, the Roommates.com Web site "turned your computer into [a Fair Housing Act] violation machine,” Wall said.

Section 230 of the Communications Decency Act gives "interactive computer services" immunity from most claims arising from the publication of content submitted by third-party "information content providers." The problem identified by Roommates.com was that profile-building forms on the Web site required users to express unlawful preferences for potential roommates. This aspect of the Web site's operation made Roommates.com an "information content provider" with respect to the unlawful content supplied by its users, the Ninth Circuit ruled. Thus, the Web site was not entitled to CDA Section 230 immunity from Fair Housing Act liability arising from this content.

Wall's reading of the Roommates.com decision has so far held up, at least in the lower court cases that have considered that aspect of the Roommates.com decision. The five cases decided since Roommates.com all pretty much bear out Wall's view that publishers lose their CDA Section 230 immunity only when they require the submission of unlawful content. In fact, one court took an even narrower view, stating that in Roommates.com it was the Web site's profile-building questions themselves that were unlawful.

In Doe v. MySpace Inc., No. 08-140 (E.D. Texas May 22, 2009), the court held that MySpace was not an "information content provider" of information contained in an online profile supplied by the plaintiff, a crime victim whose sexual assault was allegedly orchestrated through use of the MySpace Web site:

[T]he Plaintiff argues that the Defendant is an information content provider because it developed the information on the profiles which caused Julie Doe’s injuries. However, Roommates.com is not applicable to the instant case. The Ninth Circuit repeatedly stated throughout its en banc opinion that the Roommates.com website required its users to provide certain information as a condition of its use and was, therefore, and information content provider. Here, however, users of MySpace.com are not required to provide any additional information to their profiles identified and later sexually assaulted. ... [A]lthough MySpace.com prompts its users to supplement their profiles with additional information via a list of categories, such conduct is insufficient to hold the Defendant out as an information content provider.

Another decision, Goddard v. Google, Inc., involved allegedly unlawful content that was submitted by a Google Adwords advertiser. The court rejected a Roommates.com-based attack on CDA Section 230 immunity, stating that Roommates.com lost its immunity "only by forcing its users to provide the allegedly discriminatory information as a condition of access."

In GW Equity LLC v. Xcentric Ventures LLC, No. 07-976 (N.D. Texas Jan. 9, 2009), the court said that Roommates.com held that a Web site would not be entitled to CDA Section 230 immunity only in cases in which "a mere question leads to liability." Merely encouraging a Web user to select a category from a broad range of proposed categories did not deprive the Web site operator of immunity for user-supplied unlawful content.

In Atlantic Recording Corp. v. Project Playlist Inc., No. 08-3922 (S.D.N.Y. March 25, 2009), the court offered an even narrower reading of the Roommates.com decision. This court believed that the questions themselves must be unlawful:

The Ninth Circuit's decision was based solely on the fact that the content on the website that was discriminatory was supplied by Roommates.com itself. It was Roommates.com that, in violation of federal and California state housing law, required potential subscribers to identify their sex, sexual orientation, and family status, and to indicate their preferred sex, sexual orientation, and family status in a roommate.

Lastly, in Barnes v. Yahoo! Inc., No. 05-36189 (9th Cir. May 7, 2009), the court described Roommates.com as holding that merely providing "neutral tools to carry out what may be unlawful or illicit" does not make a Web site an information content provider.

Looking at these cases, it's fair to say that while Roommates.com was a loss for one particular online publisher, it is causing very few problems for the rest of the Web.

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Judge Sotomayor Is First Nominee With Cyberlaw Record

President Obama's choice today for Associate Supreme Court Justice, Sonia Sotomayor, authored a handful of cyberlaw opinions while on the Second Circuit. All business disputes and a privacy case, but nothing (I hope) that could provide ammunition for the World's Greatest Deliberative Body.

About Judge Sotomayor I will venture this: If confirmed, she will be the first justice who has written cyberlaw-related opinions before joining the court. I looked just now and couldn't find where Chief Justice Roberts or Associate Justice Alito had written a cyberlaw opinion while serving as appellate judges. (Then-Judge Alito missed both ACLU v. Reno and Playboy Entertainment Group, Inc. v. United States, a pair of new media cases that were decided initially by special three-judge panels in the Third Circuit.)

I don't think any of the following means much as far was what Judge Sotomayor will do as an Associate Supreme Court Justice. I'm passing it along for conversational purposes only.

Judge Sotomayor wrote the court's 2002 opinion in Specht v. Netscape Communications Corp., an important online contracting case. In Specht, the Second Circuit declined to enforce contract terms that were available behind a hyperlink that could only be seen by scrolling down on a Web page. A “reasonably prudent” user would not have learned of the existence of the terms before responding to an invitation to download free software, Judge Sotomayor wrote.

Judge Sotomayor's opinion in Specht made the point that clicking a button may not be construed as an assent to a contract if the site did not make clear that the act of clicking would signify assent to the terms of a contract. Although a party may not normally argue that his failure to read the terms of a contract made it unenforceable, the court said that there is an exception to this rule “when the writing does not appear to be a contract and the terms are not called to the attention of the recipient.”

“We are not persuaded that a reasonably prudent offeree in these circumstances would have known of the existence of license terms,” Judge Sotomayor wrote. “Plaintiffs were responding to an offer that did not carry an immediately visible notice of the existence of license terms or require unambiguous manifestation of assent to those terms. ... [I]n circumstances such as these, where consumers are urged to download free software at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms.”

Judge Sotomayor also wrote opinions in a pair of domain name cases, Storey v. Cello Holdings LLC in 2003 and Mattel Inc. v. barbie-club.com in 2002.

In Storey v. Cello, the Second Circuit held, per Judge Sotomayor, that an adverse outcome in an administrative proceeding under the Uniform Domain Name Dispute Resolution Policy did not have preclusive effect on a later-initiated federal suit brought under the Anticybersquatting Consumer Protection Act (ACPA).

In Mattel Inc. v. barbie-club.com, Judge Sotomayor authored an opinion holding that a federal court may obtain in rem jurisdiction over a domain name under the ACPA only in a district in which the domain name registrar or other domain-name authority is located. The ruling was based on a straightforward reading of the ACPA. However, at the time, some attorneys held the view that federal court jurisdiction could be created in any federal district merely by "depositing" written evidence of the domain registration with the trial court. Judge Sotomayor rejected that argument.

In Leventhal v. Knapek, No. 00-9306 (2d Cir. Sept. 26, 2000), a privacy case, Judge Sotomayor wrote for the Second Circuit that New York state agency officials and investigators did not violate a state employee's Fourth Amendment rights when they searched the contents of his office computer for evidence of unauthorized use of state equipment.

Finally, while on the federal district court bench, Judge Sotomayor took the first crack at Tasini v. New York Times, 972 F. Supp. 804 (S.D.N.Y. 1997), writing an opinion in a case involving freelance authors' rights to news articles that the New York Times digitized and resold in an electronic database. Judge Sotomayor's judgment in favor of the Times was later reversed by the Supreme Court.

Update: Notwithstanding this record, Judge Sotomayor will be joining a court where she will have very little opportunity to rule on cyberlaw issues.

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Provocative Ruling in Facebook v. Power Ventures

All your friends in just one place. Except for your Facebook friends.

And maybe that is a good thing because, according to the court's ruling in Facebook Inc. v. Power Ventures Inc., No. 08-5780 (N.D. Cal. May 11, 2009), Facebook users who give Power.com their username and password information are infringing Facebook's copyright in its profile pages.

There are a few other gems in this opinion as well.

Takeaways for online business attorneys: When it comes to protecting Web site content, the Copyright Act is a powerful ally. Also, terms of use statements can effectively frame what is and is not an authorized use of your site content, even against parties that did not read those terms.

Takeaways for Web users: Like they say on the playground, you can pick your friends, you can pick your data. But you can't pick your friend's data.

Power Ventures, the defendant, operates Power.com, a Web site that permits users to aggregate data about themselves that is spread out across various social media Web sites. Power.com and Facebook tried unsuccessfully to work a deal so it could access Facebook’s Web site. Lacking official permission to access Facebook's Web site, Power.com turned to Facebook users, obtaining from them their username and password for the limited prupose of gaining access to their profile data. Power.com, armed with username/password information necessary to access Facebook users' accounts, then employed a computer program to pull profile data out of the Facebook Web site.

Facebook sued for violations of the CAN-SPAM Act, the Copyright Act, the Digital Millennium Copyright Act, the Computer Fraud and Abuse Act and related state claims. The court's ruling addressed the copyright-related claims and the trademark claim.

The court repeatedly referred to Power.com's conduct as "scraping," an ominous sign. Cf. eBay v. Bidder's Edge and Verio v. Register.com.

The court found that Power.com's scraper made an actionable "cache" copy of the user's profile page each time it accessed a Facebook profile page. It followed Ticketmaster LLC v. RMG Techs. Inc., 507 F. Supp.2d 1096 (C.D. Cal. 2007)("copies of webpages stored automatically in a computer's cache or random access memory (RAM) upon a viewing of the webpage fall within the Copyright Act's definition") on this point.

Next the court held that these cache copies were unauthorized. Support for this conclusion was drawn from the Facebook terms of use, which prohibits downloading, scraping, or distributing any part of the Facebook Web site. True, the user may download his or her own content; however, the terms of use state that the user may not use automated means to do so.

OK, so far the court has found that Power.com made unauthorized copies of the Facebook Web site. What about the fact that Facebook does not own the copyright in its users' profile data? Facebook surmounted this hurdle by arguing that the content of the Facebook page that surrounded the user's data is copyrightable and is owned by Facebook. According to Facebook, the Power.com scraper operated in a manner that required it to copy the entire Web page in order to extract the user's profile data.

Defendants correctly assert that Facebook does not have a copyright on user content, which ultimately is the information that Defendants’ software seeks to extract. However, if Defendants first have to make a copy of a user’s entire Facebook profile page in order to collect that user content, such action may violate Facebook’s proprietary rights. Accordingly, the motion to dismiss the claim for direct copyright infringement will be denied.

Note that the court is conditioning its ruling on the assertion that the Power Ventures scraper necessarily copied the entire Web page before it processed the page and extracted the profile data. That comports with my (limited) understanding of how a Web scraper works. But is it true? If it were true, couldn't an argument be made that this is a fair use of the page? I'll leave that for better lawyers. In any event, the issue wasn't raised in the court's opinion or by counsel as far as I could tell. The court wound up holding that Facebook had alleged a valid claim for direct copyright infringement against Power.com.

Finally, to return to the point where I started this post, the court also held that the complaint stated a valid claim for indirect copyright infringement as well. The court reasoned like this:

[T]he utilization of Power.com by Facebook users exceeds their access rights pursuant to the Terms of Use. ... Moreover, when a Facebook user directs Power.com to access the Facebook website, an unauthorized copy of the user's profile page is created. ... The creation of that unauthorized copy through the use of Defendants' software may constitute copyright infringement.

The court doesn't come out and say it, but I will: Power.com can only be indirectly infringing if Facebook users are directly infringing. Users aren't being sued here, so it's merely an academic point. Interesting nonetheless.

Along the way, the court declined to dismiss the DMCA and trademark infringement claims against Power.com as well.

It will also be interesting to see how the court rules on Facebook's Computer Fraud and Abuse Act claims (based on violations of the Facebook terms of use), assuming the case gets that far.

Update: Venkat @VBalasubramani was on this one over a week ago making pretty much the same points.

South Carolina AG Signs Off on Craigslist Injunction

Sort of a fait accompli in light of statements made earlier this week, but the South Carolina Attorney General's office formally agreed this afternoon "to refrain from initiating or pursuing any prosecution against craigslist or its officers and employees in relation to content posted by third parties on craigslist's website." The consent order is available here.

The Irony

From @Legal_Times.

View of the Summit

Just received word that the World Copyright Summit is set for next month in Washington, D.C. (elevation 1 ft.). Isn't a summit an event where leaders, heads of state, potentates, and even a few despots gather to negotiate treaties and make hopeful declarations? The Paris Peace Conference, that was a summit. The secret meetings that produced the Camp David Accords? Summit. The two years of negotiations between the Egyptians and the Hittites that led to the world's first peace treaty, now that was a summit. Summit, meaning a peak, an extreme, a high point. Not just any old conference. Summum from the Latin dictionary. Summum bonum, the greatest good. Summum jus summum injuria, extreme justice is sometimes extreme injustice. If an event doesn't have world leaders deciding or declaring something then it's not a summit. And I don't see any world leaders on the World Copyright Summit agenda. Well OK, Robin Gibb is speaking. But I don't think he qualifies as a world leader, global disco craze notwithstanding. Gibb is a Commander of the Order of the British Empire and he did sing lead on several Bee Gees songs, but in terms of global stature he is nevertheless down a rung or two from Sir Paul, and I definitely don't consider Sir Paul -- arguably "bigger than Jesus" -- a world leader. Then there is the additional problem that neither Gibb nor anybody else is going to be negotiating anything important at the summit. Just a bunch of lawyers and execs asserting the same case-hardened views they've asserted a half-dozen times this year already. They don't even listen to each other's speeches. (Now, if the summitees were to come up with a mutually agreeable definition of fair use, maybe leave a penny or two on the table for the other guy, that might constitute a summit). World Copyright Summit, you are not a summit. Ditto for Privacy Summit, Tech Policy Summit, Broadband Policy Summit, Aspen Summit, Online Marketing Summit, Drug Development Summit, Social Media Success Summit, Sage Summit, Forecasting Summit(not about weather), Blog Business Summit, and National Bed Bug Summit. Summit promoters, you're on notice. I'm through with you.

Tugging on Superman's™ Cape

Google announced yesterday a change in its AdWords policy that will permit advertisers to display the trademarks of other companies in the text of their Google ads. Just so trademark owners will have something interesting to talk about at the International Trademark Association meeting in Seattle tomorrow, I guess.

While I am waiting to be educated about the meaning of all this by Eric Goldman, I will venture the suggestion that this is not all that big of a deal. Google's new policy permits the display of another company's trademark only in certain circumstances:

Ads which use the term in a descriptive or generic way, and not in reference to the trademark owner or the goods or services corresponding to the trademark term.

Ads which use the trademark in a nominative manner to refer to the trademark or its owner, specifically:

Resale of the trademarked goods or services: The advertiser's site must sell (or clearly facilitate the sale of) the goods or services corresponding to a trademark term. The landing page of the ad must clearly demonstrate that a user is able to purchase the goods or services corresponding to a trademark from the advertiser.

Sale of components, replacement parts or compatible products corresponding to a trademark: The advertiser’s site must sell (or clearly facilitate the sale of) the components, replacement parts or compatible products relating to the goods or services of the trademark. The advertiser’s landing page must clearly demonstrate that a user is able to purchase the components, parts or compatible products corresponding to the trademark term from the advertiser.

Informational sites: The primary purpose of the advertiser’s site must be to provide non-competitive and informative details about the goods or services corresponding to the trademark term. Additionally, the advertiser may not sell or facilitate the sale of the goods or services of a competitor of the trademark owner.

So we're talking about re-sellers ("Coca Cola on sale here at Safeway"), component parts ("Our cheapie cable is compatible with your Blackberry"), and informational sites ("Hondas get better gas mileage than Cadillacs but we sell neither"). I don't believe these are burning issues within the trademark owner community, and I am not aware of any cases that suggest Google has liability in these three situations. A case involving the display of a competitors' mark in the text of an AdWords ad, Government Employees Insurance Company v. Google Inc., No. 04-507 (E.D. Va. Aug. 8, 2005), did suggest that Google might have trademark liability:

Despite the many flaws in its design, the survey’s results were sufficient to establish a likelihood of confusion regarding those Sponsored Links in which the trademark GEICO appears either in the heading or text of the ad. Based on this finding, Google may be liable for trademark infringement for the time period before it began blocking such usage or for such ads that have slipped or continue to slip through Google’s system for blocking the appearance of GEICO’s mark in Sponsored Links. For, despite the flaws in the survey, the extremely high percentages of respondents who experienced some degree of confusion when viewing such ads provides sufficient evidence to survive defendant’s Motion for Judgment. Further, having been advised by defendant that it has no evidence to introduce on this last issue, the Court finds that plaintiff has established a likelihood of confusion, and therefore a violation of the Lanham Act, solely with regard to those Sponsored Links that use GEICO’s trademarks in their headings or text.

Aware of the importance of these issues to the ongoing evolution of Internet business practices and to the application of traditional trademark principles to this new medium, the Court emphasizes that its ruling applies only to the specific facts of this case, which include the unique business model employed by plaintiff and the specific design of defendant’s advertising program and search results pages. In addition, the Court has not addressed several remaining legal issues, including whether Google itself is liable for the Lanham Act violations resulting from advertisers’ use of GEICO’s trademarks in the headings and text of their Sponsored Links, as accomplished through Google’s Adwords program. That significant issue remains to be resolved, either through an agreement by the parties or in a continuation of the trial. Also unresolved is the timeframe during which violations occurred and the measure of damages or other relief to which plaintiff may be entitled if Google were to be found liable.

The case subsequently settled before any determination could be made on the merits of GEICO's trademark claims. Anyhow, the court's tentative and careful language here is hardly a condemnation of the use of trademarks in AdWords copy.

Setting aside the issue of Google's liability, here are recent three cases that held the use of a competitor's trademark in an advertisement can be a fair use. Granted, winning on fair use an expensive way to go.

• Mary Kay Inc. v. Weber, No. 08-776 (N.D. Tex. Feb. 20, 2009)

• Tiffany (NJ) Inc. v. eBay Inc., No. 04-4607 (S.D.N.Y. July 14, 2008)

• Designer Skin LLC v. S & L Vitamins Inc., No. 05-3699 (D. Ariz. May 20, 2008)

It will be interesting to read what trademark experts think about Google's move. Will trademark owners find this new policy provocative or somehow an infringement of their rights? If you've got a thought or have written something already, let me know.

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Who Can You Believe on Intellectual Property Rights Enforcement?

Somebody will have to explain to me how a country like Canada can be listed on the U.S. Trade Representative's Priority Watch List for worst intellectual property regimes and yet rank sixth best in the world for intellectual property protection, according to a study written by Taylor Wessing, a lawfirm specializing in enforcing intellectual property rights.

One of these studies must be buncombe, right?

The United States, ranked third, was dinged by Taylor Wessing for being a relatively expensive jurisdiction in which to enforce intellectual property rights.

Just to satisfy my curiosity I wrote down which countries appearing in Taylor Wessing's rankings were singled out for criticism by the U.S. Trade Representative. Looks like the USTR put Canada in with some pretty rough company. And it spared for scorn many countries that, in Taylor Wessing's estimation, are more hostile than Canada to intellectual property rights enforcement: Ireland, New Zealand, France, Singapore, Japan, Spain, South Africa, and South Korea.

Jurisdiction	Taylor Wessing Rank	USTR 301 Designation
UK	1	--
Germany	2	--
USA	3	--
Australia	4	--
Netherlands	5	--
Canada	6	Priority Watch
Ireland	7	--
New Zealand	8	--
France	9	--
Singapore	10	--
Japan	11	--
Israel	12	Priority Watch
Spain	13	--
South Africa	14	--
South Korea	15	--
Mexico	16	Watch
UAE	17	--
Italy	18	Watch
Turkey	19	Watch
Poland	20	Watch
Russia	21	Priority Watch
Brazil	22	Watch
India	23	Priority Watch
China	24	Priority Watch

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Nice Win for Online Publishers in Ninth Circuit Today

Great case from the Ninth Circuit today. And a nice CDA Section 230 win for online publishers. But tempered by the fact that the publisher still has to defend part of the plaintiff's case: a contract-based claim that the publisher promised to remove objectionable material from its Web site -- but failed to do so.

In Barnes v. Yahoo! Inc., No. 05-36189 (9th Cir. May 7, 2009), the court held that Yahoo! was entitled to claim immunity under Section 230 of the Communications Decency Act (47 U.S.C. 230) to a tort claim alleging that Yahoo! negligently failed to remove scandalous and false materials from its Web site after promising the plaintiff it would do so.

The court held that Yahoo! was entitled to immunity on the tort of "negligent undertaking," and in the process rejected the plaintiff's argument that CDA Section 230 is limited to defamation claims only.

To summarize, we hold that section 230(c)(1) bars Barnes’ claim, under Oregon law, for negligent provision of services that Yahoo undertook to provide. The district court properly granted Yahoo’s motion to dismiss that cause of action.

Unfortunately for Yahoo!, one of its employees allegedly promised to remove the offending material -- which was posted by the plaintiff's former boyfriend. The court said that Yahoo! was not necessarily entitled to CDA Section 230 immunity to plaintiff's cause of action for promissory estoppel, a contract-based claim.

The court wrote:

Subsection 230(c)(1) creates a baseline rule: no liability for publishing or speaking the content of other information service providers. Insofar as Yahoo made a promise with the constructive intent that it be enforceable, it has implicitly agreed to an alteration in such baseline.

The court held that "insofar as Barnes alleges a breach of contract claim under the theory of promissory estoppel, subsection 230(c)(1) of the Act does not preclude her cause of action." It remanded to the trial court for consideration of whether a valid contract was actually formed by Yahoo!'s actions, and whether Yahoo! might have an affirmation defense to the contract claim under CDA Section 230(c)(2).