Intellectual Property Law

Judge Gants Hold Stubhub Not Protected by CDA Section 230 (relying on Roommates.com Decision)

By Lee.Gesmer

In what may have been Judge Gants’ last written decision before departing Suffolk Superior Court for the Supreme Judicial Court,  on January 26, 2009 then-Judge (now Associate Justice effective January 29, 2009 ) Ralph Gants ruled on a number of issues in the New England Patriots lawsuit against StubHub.com. The claims are all based on the fact that StubHub facilities ticket scalping, something that obviously pisses off the NE Patriots’ owners (who appear to be control freaks bar none, although for all I know the other NFL clubs behave the same way) no end.

The entire discussion on 47 USC Section 230 is only a small part of the decision (which addresses a number of defensive theories set forth by StubHub, rejecting most of them) is as follows:

CDA immunity “applies only if the interactive computer service provider is not also an ?information content provider,’ which is defined as someone who is ?responsible, in whole or in part,’ for the creation or development of the offending content.” Roommates, 521 F.3d at 1162;47 U.S.C. § 230(f)(3). The Ninth Circuit has interpreted the term “development” as “referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.” Roommates, 521 F.3d at 1167-1168. Here, as discussed earlier, there is evidence in the record that StubHub materially contributed to the illegal “ticket scalping” of its sellers. In effect, the same evidence of knowing participation in illegal “ticket scalping” that is sufficient, if proven, to establish improper means is also sufficient to place StubHub outside the immunity provided by the CDA.

Judge Gants is a great judge, and he earned a lot of respect for his work on the trial court, and in the BLS in particular, but I have little doubt that this decsion will draw the wrath of the large (and very vocal) Internet free speech crowd.  The Ninth Circuit Roommates.com decision is, itself, questionable.  In that case the 9th Circuit (en banc) held that the fact that Roommates.com provided drop down menus that provided choices (children, sexual orientation) that violated the FHA (assuming that landlords, not people seeking real roommates, are the users of the site), deprived Roommates.com of immunity under Section 230.  This practice, the Ninth Circuit held, was not immune since the drop down menus choices it gave users turned the web site into the “developer . . . at least in part” of the illegal information.

It’s far from clear whether HubStub crossed the line from passive transmitter to content provider based on the Ninth Circuit analysis.  From what I am able to see, StubHub did nothing more than make available a NE Patriot’s page where third parties did their dirty wor; it didn’t provide users with prompts, as was the case in Roommates.com, and therefore it appears to have been farther removed from the illegal creation of illegal content than Roommates.com.  And, one must wonder whether StubHub could claim immunity under 47 USC Section 230 by simply eliminating the “Patriot’s page” and allowing ticket holders to use a the “all other sports” page that StubHub already uses.  The Patriots would have a difficult time getting past Section 230 if StubHub was purely passive in this manner.

Here is a link to the full opinion, NPS LLC (New England Patriots) v. StubHub.

Full post as published by Mass Law Blog on April 24, 2009 (boomark / email).