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 To the great frustration of plaintiffs and their attorneys, and even some judges, courts have construed Section 230 of the Communications Decency Act in such a way as to make it virtually impossible to hold a Web site operator liable for defamatory material that is posted on the site by a third party, even if the operator has knowledge of the defamatory nature of the material and refuses to remove it. Many plaintiffs have tried to plead around the robust protection provided by Section 230, but only a very few have succeeded. One of them is Cecilia Barnes, who alleged that she was defamed by false dating profiles posted by an ex-boyfriend on Yahoo!’s dating Web site. Any claim that Yahoo! was liable for the posting of the profiles by the ex-boyfriend is precisely the sort of claim that is barred by Section 230. But Barnes claimed that a separate promise by a Yahoo! employee to remove the profiles was not precluded.

Earlier this year, in Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009), the Ninth Circuit agreed with Barnes. The court concluded that because her claim alleged a separate undertaking by Yahoo!, distinct from the act of publishing the profiles, it did not implicate the Section 230 provision that bars holding a Web site operator liable as the “publisher” of information provided by a third party. The circuit court remanded the case for further consideration of Barnes’s surviving claim, which has now withstood a further motion to dismiss in the district court in Barnes v. Yahoo!, Inc., 2009 U.S. Dist. LEXIS 116274 (D. Ore. Dec. 8, 2009).

Deleting information in the digital world can be a problematic issue. A Web site that appears to a viewer to present unitary pages of text and images actually consists of text and graphic elements that can be drawn from a variety of sources. For a variety of technical reasons, it is not unusual for text elements included in a Web page to be stored on one server and the images to be stored on another, even where the Web page, the text and image elements are all the property of a single entity. When references to text or images are deleted from the HTML code that makes up a Web page, the text and image files themselves may remain exactly where they were, still accessible directly via their original URL addresses, or via a search engine.

Security researchers at the University of Cambridge in the UK recently studied this issue in the context of social networking sites. They found that for a variety of reasons, when users delete references to images that they have uploaded to social networking sites, those images may remain accessible for a period of time after they have been “deleted” by the user.

A recent judicial opinion also briefly addressed the phenomenon of “zombie” photos, in the context of a dispute between a law firm and a group of its former associates, and a claim of violation of the right of publicity.

UPDATE:  The Ninth Circuit issued an amended opinion on June 22, 2009, see discussion below. The amended opinion included an order denying the parties’ petitions for rehearing and rehearing en banc.

Many attempts have been made to plead around the immunity provided to interactive computer services under Section 230 of the Communications Decency Act, and only a very few such attempts have succeeded. Here’s one that has succeeded at least to the point of getting a remand back to the district court. The appeals court concluded that the victim of the "incedent" false profiles posted on Yahoo! by a spurned boyfriend may have a cause of action against Yahoo! for allegedly promising to remove the profiles, then failing to do so.
 
Barnes v. Yahoo!, Inc., No. 05-36189 (9th Cir. May 7, 2009).

The copyright lawsuits brought by record company plaintiffs to redress file-sharing have yielded many decisions of first impression. However, the recent ruling by the First Circuit in In re Sony BMG, Inc. (1st Cir. Apr. 16, 2009)  is one of the few that is of interest not just to copyright litigators, but scholars of appellate procedure as well. The ruling includes a discussion of the contours of federal court of appeals mandamus jurisdiction and the circumstances under which prerogative writs should be issued to the lower federal courts. A rarefied discussion indeed.

The “Ripoff Report” consumer complaint Web site is well known to those who follow rulings involving the application of Section 230 of the Communications Decency Act, including some who self-identity as “Section 230 junkies.” Xcentric Ventures, the operator of the Ripoff Report, and its founder Ed Magedson have been serial defendants in defamation cases brought by various parties who sought to establish that the site was liable for defamatory statements made by posters to the site. Xcentric and Magedson have prevailed in almost all of those cases, even in situations where the plaintiffs sought to establish that the Magedson and Xcentric employees either wrote or substantially edited some of the alleged defamatory postings and thus were not entitled to CDA Section 230 immunity. And the Ripoff Report boasts about those successes on the Web site.

Now a defamation plaintiff, instead of bringing an action against Magedson or Xcentric with respect to a Ripoff Report post, has filed a John Doe lawsuit and is seeking discovery of the identity of the authors of the anonymous posts via a third-party subpoena to Xcentric.

The cause of action for misappropriation of reports of breaking news, i.e., “hot news” misappropriation, has been around for going on a century, since the U.S. Supreme Court opinion in International News Service v. Associated Press, 248 U.S. 215 (1918). In that landmark case the Court recognized a “quasi property” right in such reports on the part of a news-gathering organization under federal common law.

Survival of the hot news misappropriation claim, and its applicability to online news aggregators, has been the subject of much discussion and debate as news aggregation sites have become ubiquitous on the Internet, on sites ranging from Google News to thousands of more modest offerings. The AP, which was the prevailing plaintiff in the landmark case 90 years ago, has been successful in obtaining settlements with a number of online news aggregators that used its material, including a settlement with Google News in 2006 and a settlement with Moreover and its parent company Verisign last year.

The AP has again made progress in this ongoing battle, this time in its hot news misappropriation lawsuit against online aggregator All Headline News Corp. In this case, the court issued a ruling that recognizes not only the AP’s misappropriation claim, but its claim under the Digital Millennium Copyright Act copyright management provision as well.