Sign Up
Stay current with GH&R Newsletters. Click here to sign up.
E-Commerce News
CDA Immunity Applies to Civil Claim Arising From Criminal Conduct; No Trademark Infringement in Pizza Maker's Website
April 11, 2006
CDA IMMUNITY APPLIES TO CIVIL CLAIM ARISING FROM CRIMINAL CONDUCT
A federal magistrate in Texas has ruled that under the federal Communications Decency Act, an internet service provider is immune from civil liability arising from third party content, even if that civil claim is based on alleged criminal content.
The court was required to decide whether an exception to the CDA's immunity for violations of federal criminal statutes applied to civil claims arising under that federal criminal statute. Apparently, no court had ever decided the issue.
The case involved a "John Doe" lawsuit against Yahoo! Inc., brought by parents of a young man whose sexually explicit photos, created and posted by third parties, appeared in an online group frequented by pedophiles and hosted by Yahoo!
In a motion to dismiss, Yahoo! contended that the immunity provision of the CDA, which provides 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," immunized Yahoo! from liability.
The parents, however argued that an exception to the immunity provision prevented Yahoo! from invoking its protection. That exception provides that: Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute.
Because the parents' claims included a claim for the "civil remedy" provided under Title 18, they contended that the exception controlled and Yahoo! was not immune.
The Magistrate sided with Yahoo!. She noted that the use of the word "enforcement" in the exception "confirms that the exception refers to governmental action, not civil actions by a private litigant."
The Magistrate also noted that allowing such an action would undermine Congress's policy objective of eliminating disincentives to the development of the Internet. The opinion noted that "Congress decided not to allow private litigants to bring civil claims based on their own beliefs that a service provider's actions violated the criminal laws."
Sometimes the protection of internet freedom results in difficult decisions. The Magistrate's ruling was a "report and recommendation" that will need to be approved by a judge. It will be interesting to see if it holds up.
Because the parents' claims included a claim for the "civil remedy" provided under Title 18, they contended that the exception controlled and Yahoo! was not immune. The Magistrate sided with Yahoo!. She noted that the use of the word "enforcement" in the exception "confirms that the exception refers to governmental action, not civil actions by a private litigant." The Magistrate also noted that allowing such an action would undermine Congress's policy objective of eliminating disincentives to the development of the Internet. The opinion noted that "Congress decided not to allow private litigants to bring civil claims based on their own beliefs that a service provider's actions violated the criminal laws."Sometimes the protection of internet freedom results in difficult decisions. The Magistrate's ruling was a "report and recommendation" that will need to be approved by a judge. It will be interesting to see if it holds up.
NO TRADEMARK INFRINGEMENT IN PIZZA MAKER'S WEBSITE
According to a federal court in Illinois, a license agreement that permits a franchisee to use the pizzeria's namesake in operation of its stores includes, implicitly, the right to operate a Web site--even where that site exclusively benefits the franchisee.
The case concerned a dispute among the owners of Rosati's Pizza, a pizzeria with dozens of restaurants throughout the Chicago suburbs. In an effort to end the dispute, the two groups of shareholders agreed to establish exclusive territories for the two separate factions. At first, the two groups operated a joint Web site that listed the combined locations of all Rosati's Pizza stores at . But that domain name was owned by a third party. The minority group eventually acquired the domain name from that third party and removed from the site all the restaurant listings for the majority group.
The majority group filed a complaint, alleging that the removal of the listings caused a "substantial loss of business." The group contended that the minority infringed on the trademark because the license agreement did not authorize the minority to use the domain name in a way that exclusively benefited the minority group.
The court determined, however, that neither "the language of the license" nor "the relevant case law" supported the majority's case. There simply was no unauthorized use.
The majority group was not completely out of luck. While the court dismissed most of the group's claims, it found that commentary on the Web site implying that the majority's restaurants are not genuine Rosati's pizzerias supported a claim for false advertising.
The moral of the story is to make sure that the license agreement deals with all contingencies relating to the use of the mark. Otherwise, it's kind of like ordering a pizza with "everything," and forgetting to add "hold the anchovies."
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.