Brief comment on CCBill

Perfect 10, Inc. v. CCBill LLC, -- F.3d --, 2007 WL 925727 (9th Cir.), obviously has plenty to keep IP lawyers buzzing for a while. The court’s conclusion that the CDA preempts state-law false advertising claims based on making CCBill responsible for third parties’ statements is completely unsurprising. Its broader holding that “intellectual property” means “federal intellectual property,” of course, is much more eye-opening. Notably, Judge Kozinski was a member of the panel, though he didn’t write the opinion. No friend of California’s extremely expansive right of publicity, Kozinski was doubtless sensitive to the variations between state rights of publicity, which do create risks of inconsistent state laws governing third parties. Given the essentially complete overlap between state and federal trademark law, and the relative paucity of internet trade secret cases – especially third-party liability trade secret cases, which are usually losers based on lack of any special relationship between the plaintiff and the third-party disseminator – the real impact of the holding is on right of publicity claims. (It’s not impossible that state common-law copyright claims could also be affected, but I’m not aware of any such litigation.)