Here’s one of the §230 situations that fascinates me. Defendants operate a moving company review
website, MyMovingReviews.com … and their own moving company. The plaintiffs provide moving services, and
alleged that defendants deleted positive reviews of the plaintiffs and negative
reviews of the defendant moving company in order to gain market share, while
touting the website as neutral.
Plaintiffs also alleged copyright and trademark infringement from
defendants’ use of content and logo designs from plaintiffs’ website.
Defendants moved to dismiss on §230 grounds. The court
agreed that plaintiffs’ claims weren’t based on information provided by another
information content provider—the third-party reviews. (Though there were also
allegations of fake reviews created by defendants, not subject to §230
dismissal.) “The plaintiffs’ claims do
not arise from the content of the reviews, whether they be disparaging,
laudatory, or neither, but instead, the defendants’ alleged ill-intentioned
deletion of positive reviews of the plaintiffs’ moving companies and deletion
of negative reviews of their own company, coupled with various representations—that
the website offers ‘accurate’ data, that it is ‘serious about reviews quality,’
and that readers ‘see the most accurate and up to date rating information to
base your decision on.’” (Query:
puffery? I’m inclined to say no in this
context, but I suspect that there’d at least be a fight.) The court identified the liability-producing
conduct as “[t]he manner in which the information is presented, or withheld, …
as well as the allegedly misleading ratings which result from such alleged
manipulations.” Given that, the
complaint alleged that defendants were the developers of the challenged
misinformation, not just facilitators thereof.
As for the §230(c)(2) filtering defense—a rare ruling!—that section
provides immunity for “any action voluntarily taken in good faith to restrict
access to or availability of material that the provider or user considers to be
obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise
objectionable, whether or not such material is constitutionally protected.” But plaintiffs alleged bad faith, so the
issue would have to await factual development.
The false advertising and unfair competition claims under
federal and state law were otherwise adequately pled. For tortious
interference, plaintiffs failed to allege with specificity any “business
relationship or contemplated contract of economic benefit.” Where the class of
potential customers is not defined but could include anyone in need of moving
services, it wasn’t reasonable to infer that the defendants knew of the
potential business relationships at issue.
Defendants fared better on trademark infringement, as they
should. Plaintiffs Moving and Storage
(d/b/a Neighbors Moving and Storage) and American Van Lines allege that the
defendants infringed the marks “Neighbors Moving & Storage” and “American
Van Lines” by using these marks without permission on their website and in
metatags. Likely confusion isn’t a theoretical
possibility of confusion, and the allegations here failed to support any
inference of likely confusion. The website “is very clearly a review website,
and it is implausible that any reasonably prudent purchaser exercising ordinary
care would be confused by the use of the plaintiffs’ marks.” The plaintiffs alleged initial interest
confusion from the defendants’ use of metatags to divert consumers searching
for plaintiffs online to defendants’ site.
But even if the First Circuit had recognized this theory, which it hasn’t,
mere diversion wouldn’t be enough.
The complaint’s allegations of consumer confusion were
merely legal conclusions couched as factual allegations. At best the complaint
supported the inference that consumers were misled into believing allegedly
inaccurate ratings, not that they were misled about source, endorsement, or
affiliation. As the First Circuit held in Swarovski Aktiengesellschaft v. Bldg.
No. 19, Inc., 704 F.3d 44, 52 (1st Cir. 2013), “a trademark holder has no right
to police ‘unnecessary’ use of its mark. Whether necessary or not, a
defendant’s use of a mark must be confusing in the relevant statutory sense for
a plaintiff to raise a viable infringement claim.”
Copyright infringement: Plaintiff Father & Son Moving
and Storage alleged that defendants copied text from its website:
Father & Son means QUALITY LOW
COST MOVING! We are a family-owned business, dedicated to providing
professional and personal service. Father & Son specialized in local, statewide,
long distance moving, Office relocation, truck rentals, small moves, self
services movers, and more. All moves are performed by our quality trained
professionals, who handle your moving needs from start to finish. [address and
contact info]
The registration hadn’t been issued when the complaint was
filed, but it had been now, so the complaint wouldn’t be dismissed. (Ugh, why
not just do fair use as a matter of law?)
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