The Ninth Circuit has recently clarified the scope of immunity for internet services provides under the Communications Decency Act. That statute contains an immunity provision, stating that that “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.” 47 USC § 230 (c)(1). This immunity is limited, however, in that it does not apply to claims “pertaining to intellectual property.” The Ninth Circuit has now interpreted this provision as only applying to intellectual property as defined under federal law, e.g. patents, trademarks, copyrights. Perfect 10 v. CCBill LLC, 2007 WL 1557475 (9th Cir. 2007).
What does this mean?
As a defendant service provider it means that you may seek immunity under § 230(c)(1) where state intellectual property claims are brought against you. Of course, if the federal and state claims are similar, you won’t be escaping much because the federal claim will still survive.
As a plaintiff seeking to enforce a state trade secret claim or any other intellectual property interest recognized and created under state law, the results are not so good. It will be much more difficult to bring a state intellectual property claim, or seek an injunction based on a trade secrets claim. For instance, when a service provider hosts user-posted material misappropriating your trade secrets or infringing on other state-recognized intellectual property rights, the service provider will be immune under § 230(c)(1), and your only recourse will be a claim against that user who posted the material.
The original opinion was amended so that the Ninth Circuit could insert a footnote that reiterates that it really did mean that intellectual property means “federal intellectual property” and state intellectual property claims are preempted by § 230. There are two other cases pending before the Ninth Circuit dealing with the same types of questions, and those decisions will indicate just how far the Ninth Circuit believes the immunity provision extends. In the meantime, service providers in particular should take note that they can now invoke section 230 immunity for the acts of third-parties where the claims raised are state intellectual property claims.