Thursday, October 22, 2015

General involvement in app production doesn't defeat 230

Free Kick Master LLC v. Apple Inc., 2015 WL 6123058, No. 15-cv-03403 (N.D. Cal. Oct. 19, 2015)
Free Kick Master has a registration for “Free Kick Master,” and sued Apple, Google, and Samsung, alleging that they all offered downloads of an infringing Free Kick Master app or game.  Though framed as direct infringement, the trademark claims had to be understood as contributory infringement claims.  For services, contributory liability can attach to those who continue to supply a service to one known to be using it in an infringing manner, so long as the service provider is also shown to have ‘[d]irect control and monitoring of the instrumentality used by a third party to infringe....” Under this standard, Free Kick Master failed to allege facts showing Amazon/Google continued to supply their services to third-party app developers engaged in infringement after learning of that infringement; no facts even alleged that Amazon/Google knew that the apps and games were infringing until the lawsuit was filed.
Also, the state law claims, including the state law trademark infringement claim, were barred by §230 of the CDA because of the 9th Circuit’s rule that the IP exclusion in §230 means federal IP.  Free Kick Master argued that it had alleged that Google/Apple had contributed to the alleged illegality by promising to promote the apps, approving the apps, ensuring that the apps worked as outlined and didn’t impair users’ devices, testing the apps for compatibility, and supplementing them with code.  But having content guidelines and rules, enforcing those rules, and providing technical assistance to developers was insufficient to lose §230 immunity.  Without an allegation that Amazon/Google were responsible for the infringing content—choosing the names, assisting or encouraging the infringing use of Free Kick Master’s mark, etc.—there was no claim. 
Samsung got out of the trademark infringement claim under the same theories, with even more attenuated connection to the third-party websites on which the allegedly infringing downloads compatible with its devices were offered.  The state law claims were dismissed as to Samsung because they were basically the same as the Lanham Act claims; Samsung apparently didn’t argue §230, perhaps because it’s not even providing relevant services.

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