sound recordings. In Perfect 10, Inc. v. CCBill LLC,^3007 the Ninth Circuit made an important
ruling with respect to Section 230 of the CDA, which states that “[n]o 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,” and expressly preempts any state law to the
contrary. 47 U.S.C. §§ 239(c)(1), (e)(3). The immunity created by Section 230(c)(1) is limited
by Section 230(e)(2), which requires the court to “construe Section 230(c)(1) in a manner that
would neither ‘limit or expand any law pertaining to intellectual property.’” Thus, Section 230
does not clothe service providers in immunity from “law[s] pertaining to intellectual property.”
The CDA does not contain an express definition of “intellectual property.” The Ninth Circuit
expressed the view that, “[b]ecause material on a website may be viewed across the Internet, and
thus in more than one state at a time, permitting the reach of any particular state’s definition of
intellectual property to dictate the contours of this federal immunity would be contrary to
Congress’s expressed goal of insulating the development of the Internet from the various state-
law regimes.”^3008 Accordingly, the Ninth Circuit construed the term “intellectual property” to
mean “federal intellectual property,” and concluded that the defendants were eligible for CDA
immunity “for all of the state claims raised by Perfect 10.”^3009 Although the only state
intellectual property claims the plaintiff had raised were trademark claims, the Ninth’s Circuit’s
seemingly categorical ruling that Section 230’s immunity preempts all state intellectual property
claims would presumably apply to state copyright law claims asserted against service providers.
- Limitations of Liability of Online Service Providers under the
Communications Decency Act
The Communications Decency Act (“CDA”), 47 U.S.C. § 230, was passed by Congress
to create “a federal immunity to any state law cause of action that would hold computer service
providers liable for information originating with a third party.”^3010 Specifically, 47 U.S.C. §
230(c)(1) provides that “[n]o 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.” Section 230(e)(3) provides in part that “[n]o cause of action may be brought and no
liability may be imposed under any State or local law that is inconsistent with this section.” One
of the main purposes of the CDA immunity was to prevent service providers from being treated
as the publisher of defamatory statements posted on or through the service by users.
(a) Stoner v. eBayStoner v. eBay Inc.^3011 involved a novel application of the CDA to shield the online
auction service provider eBay Inc. from liability under state laws for intellectual property
infringements committed through its service. In that case, the plaintiff sought to hold eBay liable
(^3007) 481 F.3d 751 (9th Cir. 2007), cert. denied, 552 U.S. 1062 (2007).
(^3008) Id. at 768.
(^3009) Id.
(^3010) Zeran v. America Online, 129 F.3d 327, 330 (4th Cir. 1997) (emphasis added).
(^3011) 56 U.S.P.Q.2d 1852 (Cal. Sup. Ct. 2000).