Judge Gants Holds StubHub Not Protected by CDA Section 230 (relying on Decision)

On January 26, 2009, in what may have been Judge Ralph Gants’ last opinion before departing Suffolk Superior Court for the Supreme Judicial Court on January 29, 2009, Judge Gants ruled on a number of issues in the New England Patriots lawsuit against The claims are based on the fact that StubHub provides an online marketplace for the scalping of Patriot’s tickets, something that really pisses off the Patriots’ owners, who attempt to exercise a high degree of control over their ticket sales.  The Patriots’ various causes of action arise out of their claim that the tickets are a “revocable license” with printed terms, and civil claims related to the Massachusetts anti-scalping statute, G. L. c. 140, Section 185A.

The discussion on 47 USC Section 230 is only a small part of the decision (which addresses a number of defensive theories set forth by StubHub on summary judgment, rejecting most of them) is as follows:

CDA immunity “applies only if the interactive computer service provider is not also an ‘information content provider,’ which is defined as someone who is ‘responsible, in whole or in part,’ for the creation or development of the offending content.” Roommates, 521 F.3d at 1162;47 U.S.C.

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It’s easy to forget that the Digital Millennium Copyright Act is really two separate laws. One protects publishers from “inadvertent” copyright infringement by creating the “notice-and-takedown” regime that requires copyright owners to demand that publishers take down copyrighted works published by third parties before asserting infringement. The other part of the DMCA is the anti-circumvention rule that generally prevents anyone from from bypassing copy protection schemes.

The Electronic Frontier Foundation (“the leading civil liberties group defending your rights in the digital world”) has published the fifth update to its comprehensive white paper, “Unintended Consequences: Ten Years Under the DMCA.”This 19 page report details the extent to which the DMCA’s anti-circumvention provisions have been used to not to mount legal challenges against pirates who develop technologies to circumvent copy protection, but against consumers, scientists, and legitimate competitors in ways not fully anticipated when the law was passed. The EFF paper provides a comprehensive history of this side of the DMCA, including the famous “Felton/SDMI challenge” incident in 2000 (“bet you can’t defeat this protection.… Read the full article

“[n]o 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. … [n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. . . . . [However this law] shall [not] be construed to limit or expand any law pertaining to intellectual property.”

Communications Decency Act (“CDA”), 47 U.S.C.Read the full article

Recent Cases Under the Communications Decency Act

by Lee Gesmer on November 27, 2007

My partner Joe Laferrera recently wrote this article on the Communications Decency Act (CDA) which provides important legal protections to internet service providers. I have written often on this topic (see here, here and here) and Joe’s article discusses two recent cases applying this important law, one protecting a web site from liability, the other refusing immunity.

. . . But although Section 230 of the CDA provides broad immunity for online service providers, that does not mean that there are no legal risks inherent in the business of providing online services on the web. … continue reading

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