Case 2:19-cv-04034-JMY Document 81 Filed 06/05/20 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`CIVIL ACTION
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`NO. 19-4034-JMY
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`KAREN HEPP,
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`Plaintiff
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`v.
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`FACEBOOK, INC., ET AL.,
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`Defendants
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`YOUNGE, J.
`I.
`INTRODUCTION
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`MEMORANDUM
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` JUNE 5, 2020
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`This case arises out of the use of an allegedly unauthorized photograph of Plaintiff Karen
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`Hepp, captured by a security camera in a New York City convenience store, that was then posted
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`by third-party users on the respective websites and social media platforms of Defendants
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`Facebook, Inc.; Imgur, Inc.; Reddit, Inc.; Giphy, Inc.; and foreign Defendant WCGZ, S.R.O.
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`(See Amended Complaint (“Am. Compl.”), ECF No. 50.) Plaintiff asserts that she is a public
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`figure who has suffered harm from the unlawful dissemination and publication of her image, and
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`accordingly, she contends that Defendants have violated her common law and statutory right of
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`publicity.
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`Defendants Facebook, Imgur, and Reddit have each filed Motions to Dismiss (“MTD”)
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`Plaintiff’s Amended Complaint under Fed. R. Civ. P. 12(b)(6), asserting, inter alia, immunity
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`under the Communications Decency Act (“CDA”), 47 U.S.C. § 230.1 (See Imgur MTD and
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`1 Giphy also filed a Motion to Dismiss (Giphy MTD, ECF No. 55). However, on May 13, 2020,
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`Plaintiff voluntarily dismissed Giphy from this lawsuit with prejudice. (ECF No. 74.) Accordingly,
`Giphy’s Motion is no longer before the Court.
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`Case 2:19-cv-04034-JMY Document 81 Filed 06/05/20 Page 2 of 13
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`Mem., ECF Nos. 53, 53-1; Reddit MTD and Mem., ECF Nos. 54, 54-1; Facebook MTD, ECF
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`No. 56 (collectively the “Motions to Dismiss”).) The Court finds this matter appropriate for
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`resolution without oral argument. Fed. R. Civ. P. 78; L.R. 7.1(f). For the reasons that follow,
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`the Motions to Dismiss will be granted based on CDA immunity.2
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`II.
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`BACKGROUND
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`A.
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`Factual Background3
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`Plaintiff is a newscaster who has worked for the Philadelphia-based Fox 29 news team
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`since November 2010. (Am. Compl. ¶ 37.) She “is a co-anchor of the 4 am to 6 am hours of
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`As to Defendant WGCZ S.R.O., the Amended Complaint alleges that it is “is a limited liability
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`company existing under the laws of the Czech Republic” that “owns and operates ‘XNXX.com,’ a
`popular adult-oriented website featuring pornographic materials.” (Am. Compl. ¶¶ 34-35.) WGCZ
`S.R.O.’s counsel executed a waiver of service on February 28, 2020. (See ECF No. 68.) On May 28,
`2020, WGCZ S.R.O. filed a Motion to Dismiss the Amended Complaint pursuant to Rule 12(b)(2),
`asserting lack of personal jurisdiction. (See WGCZ S.R.O. MTD, ECF No. 77.)) Plaintiff’s response to
`WGCZ S.R.O.’s Motion is not due until June 11, 2020, (see Local Rule 7.1(c).). Because this Motion is
`not yet ripe, it is not addressed in this Memorandum.
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`2 Imgur’s and Reddit’s Motions to Dismiss also assert that this Court lacks personal jurisdiction
`because the Amended Complaint does not allege any suit-related contacts with this forum by either of
`these Defendants. (See Imgur Mem. 4-10 and Reddit Mem. 9-12.) However, because Plaintiff’s claims
`fail for the reason stated infra, the Court need not address personal jurisdiction over these Defendants.
`See, e.g., 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1067.6 (4th ed.
`2020) (“Alternatively, when the jurisdictional question is complex or difficult, a court simply may avoid
`the issue by resolving the suit on the merits when they clearly must be decided in favor of the party
`challenging jurisdiction, thereby obviating any need to decide the question; that approach is possible even
`when the jurisdictional issue lacks complexity.”); In re Enter. Rent-A-Car Wage & Hour Emp’t Practices
`Litig., 735 F. Supp. 2d 277, 329 (W.D. Pa. 2010) (“To streamline the decision making, courts, in
`situations where complex issues of personal jurisdiction exist and there is a pending motion which would
`be dispositive in favor of the party over whom jurisdiction is disputed, may defer ruling on the motion to
`dismiss and proceed to resolve the dispositive motion.”); see also Herrick v. Grindr LLC, 765 F. App’x
`586, 593 n.2 (2d Cir. 2019) (“Because the complaint must be dismissed in its entirety on the grounds of
`CDA immunity and failure to state claims, we need not address Grindr Holding’s and KL Grindr’s
`personal jurisdiction arguments.”).
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` 3
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` The factual allegations in the Amended Complaint are accepted as true and construed in the
`light most favorable to Plaintiff as the non-moving party. DiCarlo v. St. Mary Hosp., 530 F.3d 255, 262-
`63 (3d Cir. 2008). The Court also adopts the CM/ECF docketing system pagination.
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`2
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`Case 2:19-cv-04034-JMY Document 81 Filed 06/05/20 Page 3 of 13
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`‘Good Day Philadelphia,’ a morning news program, and joins the set as co-host for the final hour
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`of the show from 9 am to 10 am.” (Id. ¶ 38.) Prior to working at Fox 29, Plaintiff worked for
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`other news organizations in New York City, Philadelphia, and Connecticut. (Id. ¶¶ 39-41.)
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`Plaintiff alleges that “[a]pproximately two years ago, [she] discovered through her co-
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`workers and managers, that, without her consent, a photograph of her taken by a security camera
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`in a convenience store in New York City was being used in online advertisements for erectile
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`dysfunction and dating websites.” (Id. ¶ 43.) Plaintiff further alleges that she “was unaware that
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`her photograph had been taken” in the store, that she “does not know the identity or the location
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`of the store or how her photograph was secured,” and that she “has since learned that the
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`photograph has appeared illegally on many other websites.” (Id. ¶¶ 44-45.)
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`With regard to the moving Defendants, Plaintiff alleges as follows:
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` “[Her] photo was featured in a Facebook advertisement soliciting users to ‘meet and chat
`with single women.’” (Id. ¶ 46.)
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` “[Her] photo was featured on Imgur under the heading ‘milf,’ which is a derogatory and
`degrading slang acronym that refers to a sexually attractive woman with young children.”
`(Id. ¶ 47.)
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` “[Her] photo was featured on Reddit titled ‘Amazing’ in the subgroup r/obsf (‘older but
`still $#^@able’) and posted by a user known as ‘pepsi_next.’ There is a hyperlink for the
`photograph which links to the Imgur site.” (Id. ¶ 48.)
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`The Amended Complaint also references and attaches as exhibits images and internet addresses
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`of the websites on which her image appeared.4 (Id. ¶¶ 46-48, Exs. L-M.) Significantly, the
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`Amended Complaint does not allege that Defendants Facebook, Imgur, or Reddit created,
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`authored, or directly published the content that is the subject of this lawsuit. (See generally, Am.
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`Compl.)
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`4 These exhibits and internet addresses include those related to former Defendant Giphy, which
`has been dismissed from this action.
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`3
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`Case 2:19-cv-04034-JMY Document 81 Filed 06/05/20 Page 4 of 13
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`Plaintiff alleges that the unauthorized dissemination of her image impacts her
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`“image/brand on social media sites” and her “social media ranking” on sites such as Instagram
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`and Twitter. (See, e.g., id. ¶¶ 51-55.) In the specific counts of the Amended Complaint, Plaintiff
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`alleges that “Defendants’ actions with respect to [her] image have caused serious, permanent and
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`irreparable harm” to “Plaintiff’s reputation, brand and image.” (Id. ¶ 71; see also id. ¶ 64.)
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`B.
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`Procedural History
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`Plaintiff filed this action on September 4, 2019, asserting in her original Complaint
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`claims against Facebook, Imgur, Reddit, Giphy, WCGZ, S.R.O., and Does 1-10,5 alleging a
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`claim for violation of 42 Pa. Stat. and Cons. Stat. Ann. § 8316 (Count I), and a claim under the
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`Pennsylvania common law right of publicity (Count II). (Compl., ECF No. 1.) Subsequently,
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`Defendants Imgur, Giphy, Reddit, and Facebook filed motions to dismiss the Complaint. (See
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`ECF Nos. 29, 45, 46, 47.)
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`On February 18, 2020, while the motions to dismiss the original Complaint were pending,
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`Plaintiff filed her Amended Complaint, again asserting claims against the above-noted
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`Defendants under 42 Pa. Stat. and Cons. Stat. Ann. § 8316 (Count I), and the Pennsylvania
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`common law right of publicity (Count II). (See generally Am. Compl.) Accordingly, the Court
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`dismissed the motions to dismiss the original Complaint as moot. (See ECF No. 51.) In
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`response to the Amended Complaint, Defendants Imgur, Reddit, and Facebook filed the Motions
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`that are the subject of this Memorandum. 6
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`5 Plaintiff alleges that the Doe Defendants are “the owners and operators of other websites and/or
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`media outlets” who either performed the acts alleged, “acted as agents, principals, alter egos, employees,
`or representatives of the other Defendants,” or “otherwise participated in the acts alleged with the other
`Defendants.” (Am. Compl. ¶ 36.)
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`6 When the motions to dismiss the original Complaint were filed, Plaintiff had not yet
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`demonstrated proof of service of the Complaint on the foreign Defendant, WCGZ, S.R.O. (See ECF Nos.
`34, 43.) Plaintiff later effected service upon WCGZ, S.R.O. pursuant to the Hague Convention and, as
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`4
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`Case 2:19-cv-04034-JMY Document 81 Filed 06/05/20 Page 5 of 13
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`III.
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`LEGAL STANDARD
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`The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set
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`forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal, it is clear that “[t]hreadbare recitals
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`of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to
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`defeat a Rule 12(b)(6) motion to dismiss. Id. at 678; see also Bell Atl. Corp. v. Twombly, 550
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`U.S. 544, 555 (2007). “To survive dismissal, ‘a complaint must contain sufficient factual matter,
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`accepted as true, to state a claim to relief that is plausible on its face.’” Tatis v. Allied Interstate,
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`LLC, 882 F.3d 422, 426 (3d Cir. 2018) (quoting Iqbal, 556 U.S. at 678). Facial plausibility is
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`“more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Iqbal, 556
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`U.S. at 678). Instead, “[a] claim has facial plausibility when the plaintiff pleads factual content
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`that allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678).
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`Our Court of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion:
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`(1) “[the district court] must tak[e] note of the elements [the] plaintiff must plead to state a
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`claim;” (2) “it should identify allegations that, ‘because they are no more than conclusions, are
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`not entitled to the assumption of truth;’” and, (3) “[w]hen there are well-pleaded factual
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`allegations, [the] court should assume their veracity and then determine whether they plausibly
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`give rise to an entitlement to relief.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir.
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`2016) (quoting Iqbal, 556 U.S. at 675, 679).  The plausibility determination is a “context-specific
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`noted above, its counsel executed a waiver of service. (See ECF Nos. 52, 68.) The current Motions to
`Dismiss were filed before Defendant WCGZ, S.R.O.’s response to the Amended Complaint was due. As
`further noted above, WCGZ, S.R.O. has since filed a Motion to Dismiss the Amended Complaint, which
`Motion is not yet ripe for decision.
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`5
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`task that requires the reviewing court to draw on its judicial experience and common sense.”
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`Iqbal, 556 U.S. at 679.
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`IV. DISCUSSION
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`The moving Defendants contend that Plaintiff’s statutory and common law right of
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`publicity claims are barred by § 230(c) of the CDA. (See ECF Nos. 53-1 at 15-18, 54-1 at 20-22,
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`and 56-1 at 9-16.) Recognizing that § 230(c) creates a safe harbor for internet service providers,
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`Plaintiff argues that § 230(e)(2) carves out an exception for claims pertaining to state intellectual
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`property rights. (See ECF No. 61 at 2.) This presents an issue of first impression not yet decided
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`by our Third Circuit—whether CDA immunity extends to cases alleging infringement by an
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`internet service provider in violation of the various and differing state right of publicity laws.
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`A.
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`Section 230 of the Communications Decency Act
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`The CDA states that “[n]o provider or user of an interactive computer service shall be
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`treated as the publisher or speaker of any information provided by another information content
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`provider,” and expressly preempts any state law to the contrary. 47 U.S.C. § 230(c)(1), (e)(3).
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`In other words, internet service providers are not liable for third-party content. Section 230
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`“creates a federal immunity to any cause of action that would make service providers liable for
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`information originating with a third-party user of the service.” Zeran v. Am. Online, Inc., 129
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`F.3d 327, 330 (4th Cir. 1997); see also Green v. Am. Online, 318 F.3d 465, 470-71 (3d Cir.
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`2003). Under the statute there are, however, certain causes of action that are specifically not
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`barred by § 230(c), including “any law pertaining to intellectual property.” 47 U.S.C.
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`§ 230(e)(2).
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`“Section 230 was enacted, in part, to maintain the robust nature of Internet
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`communication and, accordingly, to keep government interference in the medium to a
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`minimum.” Zeran, 129 F. 3d at 330.  In fact, many courts have observed that § 230 immunity
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`should be broadly construed so as to implement Congress’s policy choice. See Saponaro v.
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`Grindr, LLC, 93 F. Supp. 3d 319, 325 (D.N.J. 2015) (“[T]he CDA manifests a Congressional
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`policy supporting broad immunity.”). In enacting the CDA, Congress stressed that “[t]he
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`Internet and other interactive computer services offer a forum for a true diversity of political
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`discourse, unique opportunities for cultural development, and myriad avenues for intellectual
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`activity.” 42 U.S.C. § 230(a)(3). The statute further reads that the “policy of the United States”
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`is to “preserve the vibrant and competitive free market that presently exists for the Internet and
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`other interactive computer services, unfettered by Federal or State regulation[.]” Id. § 230(b)(2).
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`Considering this express policy, some courts have found that “[h]olding interactive service
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`providers liable for third-party communications would have chilling implications for free speech
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`on the internet.” Saponaro, 93 F. Supp. 3d at 325; see also Dimeo v. Max, 433 F. Supp. 2d 523,
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`528 (E.D. Pa. 2006) (noting that without CDA protection, interactive computer services would
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`either have to “employ an army of highly-trained monitors to patrol” its services, or “shut down”
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`internet forums altogether).7
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`7 The Court recognizes that on May 28, 2020, President Donald J. Trump issued an Executive
`Order relating to Section 230(c) (the “Executive Order”), which appears to be directed at preventing
`censorship by online platforms such as the moving Defendants in this case. See Executive Order On
`Preventing Online Censorship, available at https://www.whitehouse.gov/presidential-actions/executive-
`order-preventing-online-censorship/ (last accessed June 4, 2020). The Policy section of the Executive
`Order states, in part:
`In a country that has long cherished the freedom of expression, we cannot allow a limited
`number of online platforms to hand pick the speech that Americans may access and convey
`on the internet. This practice is fundamentally un-American and anti-democratic.
`* * *
`Online platforms are engaging in selective censorship that is harming our national
`discourse. Tens of thousands of Americans have reported, among other troubling
`behaviors, online platforms “flagging” content as inappropriate, even though it does not
`violate any stated terms of service; making unannounced and unexplained changes to
`company policies that have the effect of disfavoring certain viewpoints; and deleting
`content and entire accounts with no warning, no rationale, and no recourse.
`Id. § 1. Policy.
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`7
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`B.
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`Defendants Meet the Criteria for Immunity under the CDA
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`“The elements required for Section 230(c) immunity are: (1) that the defendant is a
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`provider or user of an ‘interactive computer service;’ (2) that the asserted claims treat the
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`defendant as the publisher or speaker of the information; and (3) that the information is provided
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`by another ‘information content provider.’” Parker v. Google, Inc., 242 F. App’x 833, 838 (3d
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`Cir. 2007) (citing 47 U.S.C. § 230(c)(1)); see also Dimeo, 433 F. Supp. 2d at 529.
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`First, Plaintiff does not dispute that Defendants Facebook, Imgur, and Reddit are all
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`providers of an “interactive computer service,” as defined in § 230(f)(2). (See generally ECF
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`Nos. 58 at 12-15, 60 at 11-15, 61 at 2-5.) The CDA defines an “interactive computer service” as
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`“any information service, system, or access software provider that provides or enables computer
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`access by multiple users to a computer server[.]” 47 U.S.C. § 230(f)(2). Here, all three
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`Defendants fall squarely within that definition as providers of a website or social media platform,
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`namely, “Facebook owns and operates . . . one of the world’s largest social media internet
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`sites[,]” “Imgur is an internet-based online image-sharing business[,]” and “Reddit is an
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`American social news aggregation company[.]” (Am. Compl. ¶¶ 8, 10, 21.) Furthermore, this
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`Court agrees with the other courts that have held that same or similar social media platforms fit
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`the definition of an “interactive computer service” provider. See, e.g., Shulman v.
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`Facebook.com, No. 17-764, 2018 WL 3344236, at *7 (D.N.J. July 9, 2018) (concluding that
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`Facebook is an interactive computer service); Fields v. Twitter, Inc., 217 F. Supp.3d 1116, 1121
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`The Executive Order is the subject of a lawsuit filed June 2, 2020, which alleges that the
`Executive Order violates the First Amendment and “seeks to curtail and chill the constitutionally
`protected speech of all online platforms and individuals.” See Complaint, Ctr. for Democracy &
`Tech. v. Donald J. Trump, No. 20-1456-TNM (D.D.C. June 2, 2020), ECF No. 1. Having reviewed the
`Executive Order and the context in which it was issued, the Court finds that it does not alter the
`Court’s analysis of the CDA immunity issue in this case.
`8
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`(N.D. Cal. 2016) (noting that Twitter is an interactive computer service provider); Marfione v.
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`KAI U.S.A., Ltd., No. 17-70, 2018 WL 1519042, at *6 (W.D. Pa. Mar. 28, 2018) (finding
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`Instagram an interactive computer service); see also Mmubango v. Google, Inc., No. 12-1300,
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`2013 WL 664231, at *2 (E.D. Pa. Feb. 22, 2013) (“Google is an interactive computer service
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`provider.”).
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`Second, Plaintiff seeks to hold Defendants liable for information provided by another
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`information content provider. Under the statute, an “‘information content provider’ means any
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`person or entity that is responsible . . . for the creation or development of information provided
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`through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). “If a
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`defendant did not create or author the statement in controversy, but rather is provided that
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`statement by a third-party information content provider, then that defendant cannot be held liable
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`under the CDA.” Mmubango, 2013 WL 664231, at *2 (holding that the CDA immunizes the
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`defendant against the plaintiff’s claims for defamation and negligence). Here, Plaintiff does not
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`explicitly allege that Facebook, Imgur, or Reddit created or developed the offending content (i.e.,
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`postings, advertisements, and short-looping videos that utilized Plaintiff’s image). Rather, it is
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`reasonable to infer from the allegations in the Amended Complaint, and the exhibits attached
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`thereto, that Defendants merely allowed the offending content to be posted on their respective
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`platforms via third-party users. (See Am. Compl. ¶¶ 46-48; see also Ex.’s L-N.)
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`Lastly, Plaintiff’s claims seek to treat each Defendant as a “publisher or speaker” of the
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`content posted by third parties. See 47 U.S.C. § 230(c)(1). “The Third Circuit has held the CDA
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`immunizes traditional publisher conduct, such as ‘deciding whether to publish, withdraw, or alter
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`content.’” Obado v. Magedson, No. 13-2382, 2014 WL 3778261, at *5 (D.N.J. July 31, 2014)
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`(citing Green, 318 F.3d at 471). For the Defendants here, such decisions “involve deciding
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`9
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`whether to provide access to third-party content or whether to delete the content from [their]
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`archiv[e] or cache.” Mmubango, at *2. Thus, because Plaintiff’s claims are premised on third-
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`party-posted content that were hosted on each Defendants’ respective platforms, these claims are
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`not actionable under § 230.
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`In summary, the Court finds that Defendants meet the criteria for immunity under § 230
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`of the CDA.
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`C.
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`Plaintiff’s Right of Publicity Claims Do Not Qualify for the “Any Law
`Pertaining to Intellectual Property” Exclusion
`With respect to the CDA’s exclusion for “any law pertaining to intellectual property[,]”
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`the Court recognizes there that there is a split of authority over the scope of this exclusion. See
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`47 U.S.C. §230(e)(2). Specifically, there is disagreement between the Ninth Circuit and some
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`district courts over whether the CDA preempts state law intellectual property claims. Compare,
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`e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118-19 (9th Cir. 2007) (holding that the
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`CDA preempted a state right of publicity claim); Enigma Software Grp. USA, LLC v.
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`Malwarebytes, Inc., 946 F.3d 1040, 1053 (9th Cir. 2019) (“We have observed before that
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`because Congress did not define the term ‘intellectual property law,’ it should be construed
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`narrowly to advance the CDA’s express policy of providing broad immunity.”); with Doe v.
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`Friendfinder Network, Inc., 540 F. Supp. 2d 288, 302 (D.N.H. 2008) (holding that the CDA did
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`not preempt plaintiff’s right of publicity claim); Atlantic Recording Corp. v. Project Playlist,
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`Inc., 603 F. Supp. 2d 690, 704 (S.D.N.Y. 2009) (“Section 230(c)(1) does not provide immunity
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`for either federal or state intellectual property claims.”).8 Plaintiff relies primarily upon the
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`8 Moreover, the Court’s research has yielded no case law from any other appellate courts that has
`clearly resolved whether the CDA preempts right of publicity claims. See, e.g., Jane Doe No. 1 v.
`Backpage.com, LLC, 817 F.3d 12, 26 n.9 (1st Cir. 2016) (noting the split of authority over whether the
`CDA preempts right of publicity claims but not taking a position where plaintiffs’ claims failed otherwise
`on the merits); Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1323-24 (11th Cir. 2006) (discussing but not
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`10
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`decision in Atlantic Recording Corp. to argue that her right of publicity claims are not preempted
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`by the CDA. (See ECF Nos. 58 at 13-14, 60 at 12-13, 61 at 3-4.) However, for the reasons
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`discussed further below, the Court declines to follow the district court opinion in Atlantic
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`Recording Corp., and instead finds that the reasoning of the Ninth Circuit in Perfect 10 is more
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`consistent with the statutory text and purpose of § 230(c).
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`In Perfect 10, a magazine publisher sued an online credit card processing company.
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`Perfect 10, Inc., 488 F.3d at 1108. Claiming that the defendant improperly used the plaintiff’s
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`copyrighted images, the plaintiff brought several state intellectual property claims, including an
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`alleged violation of the right of publicity. Id. The defendant raised § 230 as a defense to this
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`claim, but the district court summarily denied immunity. Id. On appeal, the Ninth Circuit
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`reversed and held that the defendant was entitled to § 230 immunity against plaintiff’s right of
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`publicity claim, stating that the term ‘intellectual property’ is not defined in the statute, and that
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`“[s]tates have any number of laws that could be characterized as intellectual property laws:
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`trademark, unfair competition, dilution, right of publicity and trade defamation, to name just a
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`few.” Id. at 1107. The court noted that “[b]ecause such laws vary widely from state to state, no
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`litigant will know if he is entitled to immunity for a state claim until a court decides the legal
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`issue.” Id. The Ninth Circuit further reasoned that “[a]s a practical matter, inclusion of rights
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`protected by state law within the ‘intellectual property’ exemption would fatally undermine the
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`deciding the “difficult issues” of whether the CDA applies to a right of publicity claim, even though
`“there appears to be no dispute that the right of publicity is a type of intellectual property right”). Further,
`the Court’s research has revealed no district court opinion within the Third Circuit that has squarely
`determined the issue. See, e.g., Parker v. Paypal, No. 16-4786, 2017 WL 3508759, at *7 (E.D. Pa. Aug.
`16, 2017) (holding, without discussing § 230(e)(2), that plaintiff’s claim for right of publicity under
`California law was “clearly preempted and prohibited by § 230”); Obado, at *7 n.5 (noting the Ninth
`Circuit’s position but finding that the plaintiff failed to state a claim for a right of publicity violation and
`therefore it was unnecessary to decide whether the claim was excluded from CDA preemption); but see
`Evans v. Hewlett-Packard Corp., No. 13-2477, 2013 WL 4426359, at *3 (N.D. Cal. Aug. 15, 2013)
`(holding plaintiff’s claim under Pennsylvania’s right of publicity statute preempted by the CDA).
`
` 
`
`11
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`

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`Case 2:19-cv-04034-JMY Document 81 Filed 06/05/20 Page 12 of 13
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`broad grant of immunity provided by the CDA.” Id. at 1108. The Ninth Circuit did not
`
`expressly find the language of § 230(e)(2) to be ambiguous. Rather, citing § 230(a) and (b), it
`
`construed the term “intellectual property” in subsection (e)(2) to mean “federal intellectual
`
`property,” in light of “Congress’s expressed goal of insulating the development of the Internet
`
`from the various state-law regimes.” Id. at 1118. By contrast, the district court opinion cited by
`
`Plaintiff, which criticizes the Ninth Circuit, focuses solely on the language of § 230(e) and
`
`declines to consider the codified policy objectives. See Atlantic Recording Corp., 603 F. Supp.
`
`2d at 703-04.
`
`This Court is persuaded by the reasoning in Perfect 10. State laws that could arguably be
`
`construed as implicating “intellectual property” vary and are not uniform in their purposes and
`
`policy goals. Conditioning CDA immunity on the diverse potentially applicable state laws
`
`would have a negative effect on the development of the internet, and, therefore, would run
`
`contrary to the purpose and intent of the CDA. As the Ninth Circuit noted in Perfect 10:
`
`While the scope of federal intellectual property law is relatively
`well-established, state laws protecting “intellectual property,”
`however defined, are by no means uniform. Such laws may bear
`various names, provide for varying causes of action and remedies,
`and have varying purposes and policy goals. Because 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.
`
`
`Perfect 10, 488 F.3d at 1118; see also Gen. Steel Domestic Sales, L.L.C. v. Chumley, 840 F.3d
`
`1178, 1182 (10th Cir. 2016) (“When deciding whether a class of people qualify for immunity
`
`from suit, we look for that intent to be expressed in an explicit statutory or constitutional
`
`guarantee of immunity.” (citing Szehinkyzj v. Attorney Gen., 432 F.3d 253, 256 (3d Cir. 2005))).
`
` 
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`Case 2:19-cv-04034-JMY Document 81 Filed 06/05/20 Page 13 of 13
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`In this Court’s view, construing § 230(e)(2) as preserving only federal intellectual property
`
`claims is most fitting because this interpretation simultaneously maintains broad immunity in
`
`line with the CDA’s stated congressional purpose. This preserves the scope of immunity within
`
`a predictable body of federal law as opposed to the diverse state law on the subject matter. See
`
`Enigma Software Grp. USA, LLC, 946 F.3d at 1053 (holding “that the intellectual property
`
`exception contained in § 230(e)(2) encompasses claims pertaining to an established intellectual
`
`property right under federal law, like those inherent in a patent, copyright, or trademark”).
`
`Accordingly, the Court holds that only federal intellectual property claims are excluded
`
`from the scope of CDA immunity, and for this reason, Plaintiff’s statutory and common law right
`
`of publicity claims are barred by § 230(c) of the CDA.9 
`
`V.
`
`CONCLUSION
`
`For the reasons discussed above, the Court will grant the respective Motions of
`
`Defendants Facebook, Imgur, and Reddit. An appropriate Order will follow. 
`
` 
`IT IS SO ORDERED.
`
`
`
`BY THE COURT:
`
`
` /s/ John Milton Younge
`Judge John Milton Younge
`
`
`
`
`
` 
`9 The Court recognizes that Defendants advance other arguments under Fed. R. 12(b)(6);
`however, given that the Court concludes Plaintiff’s claims are barred by the CDA, the Court need not
`address these additional arguments.
`
` 
`
`13
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`