Riffing off Courtney Milan’s post here.
While I haven’t followed appellate cases on the Communications Decency Act § 230 the way Courtney has, the first thing I did after reading Dear Author’s answer was to read up on existing case law. Like Courtney, I didn’t see any that applied to something similar to the Dear Author situation.
As Courtney points out, most of the CDA § 230 cases involve larger companies completely unrelated, legally speaking, to the person who wrote the content in question at the heart of the suit.
Rick and I talked a lot about the implications, some before I wrote this post about DA’s answer, and some after it, but every time we talked about it, we agreed that, at its heart, the CDA does protect Dear Author LLC.
The fact of a separate legal person isn’t even an issue here.
For example, say you’ve let an author write a guest post on your own blog and you’re unincorporated. You get commenters too.
Is that still an interactive computer service?
Here’s the CDA definition again:
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
Yep, that still applies.
In reading the definitions, here are some examples:
- “Interactive computer service” – a blog
- “Information content provider” – the writer of a specific blog post (or a specific comment)
- “Access software provider” – WordPress or Blogspot or whomever
I said this before:
In other words, because Jane Litte, the pseudonymous author of the Curious post, is not Dear Author LLC, the LLC providing the Dear Author service offering the Curious post, Dear Author LLC is not liable for any statements Jane Litte made.
That’s true in this case (my opinion, not yet set in legal precedent afaik), but it shouldn’t actually matter that these are different legal persons.
If I wrote my own blogging software and someone wrote and posted a guest post, I as the publisher and software writer—but not the information content provider—should still be protected.
So What Does This Mean As Far As the Dear Author Case?
A legal case is about triable matters of fact and applying legal investigation methods (discovery) to determine those facts and settle what points of law apply to them.
At the point where the matters of fact are determined and it has become a simple matter of law, a party can move for summary judgment, moving to apply that matter of law to that set of facts. (And then the other party typically opposes with their own brief, and the judge rules, sometimes asking for a hearing first.)
Here’s a quote from a free legal dictionary.
Two criteria must be met before summary judgment may be properly granted: (1) there must be no genuine issues of material fact, and (2) the Movant must be entitled to judgment as a matter of law.
I believe this is a matter of law that’s clear about DA being entitled to judgment. After all, CDA § 230 states:
It is the policy of the United States—
- to promote the continued development of the Internet and other interactive computer services and other interactive media;
to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
…and…
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.
Dear Author is not Jane Litte.
It doesn’t matter that this is a novel application of CDA § 230. That’s why you hire someone like Marc J. Randazza: because a great lawyer thinks outside the box of existing case law and looks to intents behind the laws.
Your result may end up being right, but your analysis does not track the case law on this point, the statute itself, or generally accepted standards of reasoning.
You’re making the fundamental assumption that because Jane, a person, wrote the words, it cannot be the speech of Dear Author, the entity. This assumes what you’re setting out to prove in the first place. You haven’t even grappled with the question of whether Dear Author is, in fact, “another information content provider” or if it’s the provider of the information in question.
Example: Imagine I commission an internet ad for my company. I tell the advertising company, “Make me an ad that tells lies about my biggest competitor. I don’t care what kind of ads; the worse the better. I want their customers to flee in droves. Do it.” The advertising company retains the copyright in the ad. I spend tens of thousands of dollars putting the ad on the internet. Under your framing, I am not the speaker in the case of that ad, and so I’m not liable for any damages for defamation.
No court in the country would adopt that point of view. I paid for the ad, I specifically asked for the precise result in questiion, I chose to put it out as as representation of my company. I’m not “another information provider” at that point. I’m the freaking information content provider. And if I tried to claim CDA immunity, I’d get laughed out of court.
Simply asserting that Dear Author is “another information content provider” is really simplistic. We have no way of knowing that at this point. Did they induce the creation of the material in question? Is Jane paid a salary by Dear Author? Does she have a contract with Dear Author making all her work for them work for hire, so that the copyright is owned by them?
If a company came to court and said, “We claim the copyright in this, we asked the person to write this exact piece, we have exclusive rights in it, we approved it for publication–but we’re just another information content provider and so we aren’t liable”–they are not going to win on the CDA claim.
We don’t have the facts at this point for either of us to guess how far Dear Author can get with the CDA claim.
You’re making the fundamental assumption that because Jane, a person, wrote the words, it cannot be the speech of Dear Author, the entity.
In fact, I’ve been grappling with this one, partly because it’s not obvious to me where the lower bounds of “interactive computer service” would be. At what point does a blog transition from an “interactive content provider” to an “interactive computer service”?
I’d argue that the presence of commenters is arguably the first step in that direction.
Example: Imagine I commission an internet ad for my company. I tell the advertising company, “Make me an ad that tells lies about my biggest competitor. I don’t care what kind of ads; the worse the better. I want their customers to flee in droves. Do it.” The advertising company retains the copyright in the ad. I spend tens of thousands of dollars putting the ad on the internet. Under your framing, I am not the speaker in the case of that ad, and so I’m not liable for any damages for defamation.
On the ad question: I have a really hard time seeing an ad company as an “interactive computer service” (mostly because I have trouble with the idea of ads actually being interactive), but let’s say it is. I suppose it might be like the time I went to YouTube to watch some Tarkan (Turkish pop singer) videos and got an anti-Islam ad by some Christian hate group that preceded my video in question. Getting back to the proposed scenario: then the (non-exempt) “information content provider” is clearly me, not the ad company in question. The CDA would consider the ad company the exempt “interactive computer service” and me the non-exempt “information content provider.”
So I don’t see that, under my framing, I’d see that differently than you do. Am I missing something?
Yes, there is a question about whether the part (Jane Litte as a representative of Dear Author) is speaking for the whole, but the question there would be: “Is Dear Author, in this context, an information content provider?” As an interactive computer service, Dear Author is exempt. Also, I don’t know how important it is that EC/JJ never asserted that Dear Author was an information content provider in this context.
Your point with the Roommates case was interesting, though. I haven’t looked up the docket report for the underlying case, and normally I would have before writing my response post.
From Roommates:
So in this case, Roommates was asking (and requiring answers to) the questions that may, in context, be illegal, and had created access software specifically to ask these questions. Not only to ask those questions, but to create context-dependent profiles that showed potentially illegal grounds for discrimination.
The part where Roommates was declared to be exempt under CDA § 230 was the box where users were allowed to state their preferences in free-form, e.g., “no drugs, kids or animals.”
Also, the 9th Circuit isn’t the 6th (as we’ve been painfully reminded this last week), so I’m not at all sure how a judge in the 6th is going to rule on this particular issue. Roommates isn’t controlling in this case, and nothing I’ve read seems particularly on-point.
It’s fun to see your delight in unraveling the gist and implications of these legal maneuvers. I’ve read through both you and Courtney’s comments several times, but feel less celebratory than in some of the previous installments. How important is the single issue of Jane’s protection by CDA? She seems safe on the other points as you’ve explained them. It’s hard as an uninformed observer to guess whether some points weigh more heavily than others.
Thanks for taking the time to consider and post this latest update.
First, it’s Dear Author’s protection, not Jane’s.
How important is it? It’s a question that could go all the way to the Supreme Court, in theory, and protect blog runners who have multi-author (or many commenter) blogs.
Sorry, I misstated my question. I meant to ask whether, in light of all the other points on which seem to be in Jane and DA’s favor, how much of a risk is there in the CDA question being uncertain?
I appreciate the groundbreaking nature of the larger questions. To me the most important aspect to be determined is whether a blogger doing what Jane does should be considered a journalist. With so many factors compromising our traditional media these days, I see it as vital that individual journalists be protected. I respect and value DA, and wish Jane and those associated with the site nothing but the best. However, when EC sought to silence someone reporting news, the case took on much graver implications.
It’s possibly easier to dismiss the case against DA on CDA grounds than some of the others. Ultimately, I don’t think it’ll affect the outcome of the case (I expect DA/Jane to prevail), just perhaps the manner of the case’s disposition.