throbber
United States Court of Appeals
`For the First Circuit
`
`No. 06-1826
`
`UNIVERSAL COMMUNICATION SYSTEMS, INC.;
`MICHAEL J. ZWEBNER,
`Plaintiffs, Appellants,
`v.
`LYCOS, INC., D/B/A LYCOS NETWORK; TERRA NETWORKS, S.A.;
`ROBERTO VILLASENOR, JR., A/K/A the-worm06; JOHN DOE #2,
`A/K/A no-insiders; ROBERTO VILLASENOR, JR.,
`A/K/A the-worm06A; JOHN DOE #4, A/K/A 65175R; JOHN DOE #5,
`A/K/A Henry-Johnson123; JOHN DOE #6, A/K/A quondo1;
`JOHN DOE #7, A/K/A Tobias95; JOHN DOE #8, A/K/A CrawleySmith,
`Defendants, Appellees.
`
`ROBERT H. COOPER; ANDREW CUNNINGHAM; DOES 1 THROUGH 8;
`OMAR GHAFFAR,
`Third-Party Defendants.
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`[Hon. Robert E. Keeton, Senior U.S. District Judge]
`
`Before
` Boudin, Chief Judge,
`Selya and Lynch, Circuit Judges.
`
`John H. Faro, with whom Faro & Associates was on brief, for
`appellants.
`Daniel J. Cloherty, with whom David A. Bunis, Rachel Zoob-
`Hill, and Dwyer & Collora, LLP were on brief, for appellee Lycos,
`Inc.
`
`

`
`Thomas G. Rohback, with whom James J. Reardon, Jr. and
`LeBoeuf, Lamb, Greene & MacRae LLP were on brief, for appellee
`Terra Networks, S.A.
`
`February 23, 2007
`
`

`
`LYNCH, Circuit Judge. Plaintiffs Universal Communication
`Systems, Inc. and its chief executive officer, Michael J. Zwebner,
`(collectively, "UCS") brought suit, objecting to a series of
`allegedly false and defamatory postings made under pseudonymous
`screen names on an Internet message board operated by Lycos, Inc.
`UCS identified two of the screen names as having been registered to
`Roberto Villasenor, Jr. UCS sued not only Villasenor and the other
`posters of messages, as John Does, but also Lycos and Terra
`Networks, S.A., Lycos's corporate parent at the time of the
`postings in question.
`In Section 230 of the Communications Decency Act (CDA),
`47 U.S.C. § 230, Congress has granted broad immunity to entities,
`such as Lycos, that facilitate the speech of others on the
`Internet. Whatever the limits of that immunity, it is clear that
`Lycos's activities in this case fall squarely within those that
`Congress intended to immunize. UCS attempted to plead around this
`Section 230 statutory immunity by asserting that Lycos did not
`qualify for immunity and that UCS's claims fell within certain
`exceptions to that immunity. The district court rejected these
`arguments and dismissed the claims against Lycos and Terra Networks
`for failure to state a claim. We agree and affirm the dismissals,
`joining the other courts that have uniformly given effect to
`Section 230 in similar circumstances.
`
`-3-
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`

`
`As for the claims against the individuals who posted, UCS
`alleged violations of federal and state securities laws, but made
`only conclusory allegations that the postings at issue were in
`connection with a scheme involving UCS stock. It thus failed to
`meet the particularity requirement for pleading fraud under Federal
`Rule of Civil Procedure 9(b). In the absence of any substantial
`allegations on this point, we affirm the district court’s dismissal
`of those claims.
`
`I.
`Because we review here the district court’s granting of
`a motion to dismiss, we recite the facts as alleged in UCS’s
`complaint, McCloskey v. Mueller, 446 F.3d 262, 264 (1st Cir. 2006),
`but without crediting unsupported conclusions and assertions,
`Palmer v. Champion Mortgage, 465 F.3d 24, 25 (1st Cir. 2006).
`Universal Communication Systems, Inc. is a Nevada
`corporation with its corporate offices in Florida. The company at
`one point provided telecommunications services and currently is
`developing solar-powered water extraction systems. It is a
`publicly-traded company that trades under the ticker symbol "UCSY,"
`a label that the company also uses in its promotional materials.
`Zwebner is Chairman and CEO of the company. He is a citizen of the
`United Kingdom and of Israel, with his principal residence in
`Israel and a secondary residence in Florida.
`
`-4-
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`

`
`Lycos is a Massachusetts corporation with its principal
`place of business in Massachusetts. Terra Networks is a Spanish
`corporation with its principal place of business in Spain. Terra
`Networks owned Lycos from 2000 to 2004.
`Lycos operates a network of web sites devoted to a wide
`array of content. At times relevant here, these web sites included
`Quote.com, which provides stock quotation information and financial
`data for publicly-traded companies, and RagingBull.com, which hosts
`financially-oriented message boards, including ones designed to
`allow users to post comments about publicly-traded companies. The
`message board for each such company is generally created by a user
`and is generally identified using the company's stock ticker symbol
`-- UCSY in this case. In addition, the two web sites are linked to
`each other, so that a user who retrieves a stock quote from
`Quote.com is also given a link to the corresponding message board
`on Raging Bull. Both web sites contain advertisements, and Lycos
`derives advertising revenue that depends in some measure on the
`volume of usage of its sites.
`Individuals must register with Lycos in order to post
`messages on Raging Bull message boards. As part of the
`registration process, users are required to agree to a "Subscriber
`Agreement," which, inter alia, requires users to comply with
`federal and state securities laws. Upon registration, a member
`obtains a "screen name." Postings on the message board are
`
`-5-
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`

`
`identified by screen name, but no further identifying information
`is automatically included with the posting. The registration
`process does not prevent a single individual from registering under
`multiple screen names.
`Starting at least in 2003, a number of postings
`disparaging the "financial condition, business prospects and
`management integrity" of UCS appeared on Raging Bull's UCSY message
`board. UCS alleges that these postings were "false, misleading
`and/or incomplete." In particular, UCS identified postings made
`under eight different screen names as objectionable. UCS alleges
`that the individuals registered under each of these screen names
`"are one [and] the same individual, Roberto Villasenor, Jr. and/or
`are individuals acting in concert with Roberto Villasenor, Jr."
`On January 19, 2005, UCS filed suit against Lycos and
`Terra Networks in federal district court in the Southern District
`of Florida. On February 2, 2005, before either defendant responded
`to the complaint, UCS filed a "First Amended Complaint," adding as
`defendants eight John Does, each identified by a Raging Bull screen
`name. In this First Amended Complaint, UCS alleged four claims:
`(1) fraudulent securities transactions under Fla. Stat. § 517.301;
`(2) cyberstalking under 47 U.S.C. § 223; (3) dilution of trade name
`under Fla. Stat. § 495.151; and (4) cyberstalking under Fla. Stat.
`§ 784.048. The Florida securities claim was made against all of
`
`-6-
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`

`
`the defendants, and the remaining claims were made against Lycos
`and Terra Networks only.
`In response, Lycos filed a motion to dismiss, arguing
`that UCS's claims were barred under Section 230 of the
`Communications Decency Act, 47 U.S.C. § 230, and that there was no
`basis for either the federal cyberstalking claim or the state
`dilution claim. Section 230 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," id. § 230(c)(1), and 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," id. § 230(e)(3).
`In the alternative, Lycos moved to transfer the case to
`the District of Massachusetts, citing a forum selection clause in
`its Subscriber Agreement. In addition, Lycos sought a stay of
`discovery pending the resolution of these motions. The district
`court in Florida granted the stay and shortly thereafter
`transferred the case to Massachusetts. This left pending the
`motion to dismiss.
`Following the transfer, the district court in
`Massachusetts held a hearing on July 26, 2005, at which it denied
`all pending motions without prejudice. It then scheduled a later
`conference at which to consider any renewed motions, and held that
`
`-7-
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`

`
`it would "not lift the stay on discovery at this time." In
`response to UCS's request for limited discovery in the interim, the
`district court judge stated that he would "not allow that until
`I've had an opportunity to hear you on the matter. That will be an
`issue that we will take up at the [later] conference."
`Lycos and Terra Networks again filed motions to dismiss,
`and on October 11, 2005, the district court granted the motions.
`The court ruled from the bench that Section 230 "immunizes Lycos
`[and Terra Networks] from all of the four counts in the plaintiffs'
`complaint" and did not address any of the alternate arguments for
`dismissal. At that hearing, UCS made no mention of any need for
`discovery in order to properly oppose the motions to dismiss.
`UCS then moved for leave to amend its complaint again.
`In the proposed second amended complaint, UCS alleged essentially
`the same four causes of action, but added factual allegations going
`to the "construct and operation" of Lycos's web sites, evidently
`assuming that such facts would take Lycos outside Section 230
`immunity.
`
`On December 21, 2005, the district court denied the
`motion to amend the complaint as to Lycos and Terra Networks,
`finding that the claims against those defendants, as framed in the
`proposed second amended complaint, would continue to be barred by
`Section 230. In addition, the district court held that the claim
`for cyberstalking under 47 U.S.C. § 223 would be dismissed for
`
`-8-
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`

`
`failure to state a claim, because that statute does not provide a
`private right of action. As to the Florida trademark dilution
`claim, the court held that because Lycos was not using "the 'UCSY'
`trademark to market incompatible products or services," but was
`only using it "on the Raging Bull message board," the claim was
`"effectively . . . a defamation claim in the guise of an
`antidilution claim," and was thus barred by Section 230.
`The district court did, however, grant leave to file a
`complaint against the John Doe defendants to assert a claim under
`the Florida securities statute. On February 27, 2006, UCS filed a
`"Second Amended Complaint" against Villasenor and the John Does.
`In this complaint, UCS substituted Roberto Villasenor, Jr. for two
`of the John Does, previously identified as "the-worm06" and
`"the-worm06A." The complaint alleged that Villasenor was a
`1
`citizen of California. In addition to asserting a cause of action
`under Florida securities laws against Villasenor and the remaining
`John Does, the complaint alleged causes of action, founded on the
`same set of operative facts, under federal securities laws,
`Massachusetts securities laws, and Massachusetts common law fraud.
`Subject matter jurisdiction was alleged based on both federal
`question jurisdiction and diversity jurisdiction. UCS then moved
`for entry of separate and final judgment against Lycos and Terra
`
` Despite UCS's suggestion to the contrary, the complaint
`1
`squarely alleged that the John Does might not all be Villasenor,
`but might be "individuals acting in concert with" Villasenor.
`-9-
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`

`
`Networks. On April 6, 2006, Villasenor filed an answer to the
`complaint, also asserting counterclaims and third-party claims.
`On April 18, 2006, the district court denied the motion
`for entry of separate and final judgment as to Lycos and Terra
`Networks, finding that the court lacked subject matter jurisdiction
`over the remaining claims and so judgment should be entered on all
`claims filed against all defendants. The court found that
`diversity jurisdiction was destroyed by the presence of the John
`Doe defendants. The court also found that the claim under the
`federal securities laws against Villasenor and the John Does was
`not sufficiently substantial to confer federal question
`jurisdiction, as UCS had failed to "allege that any individual
`defendant owned, borrowed, sold, or purchased any shares in UCSY."
`As a result, the district court ordered the case "dismissed as to
`all defendants."
`
`II.
`We review a denial of leave to amend the complaint for
`abuse of discretion, "deferring to the district court for any
`adequate reason apparent from the record." Resolution Trust Corp.
`v. Gold, 30 F.3d 251, 253 (1st Cir. 1994). The futility of the
`amendment is an adequate reason to reject it, see id., and here the
`district court found that the amendment would be futile because the
`amended complaint would be subject to dismissal. Our review of a
`dismissal for either failure to state a claim or lack of subject
`
`-10-
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`

`
`matter jurisdiction (so long as made without factfinding) is de
`novo. McCloskey, 446 F.3d at 266. We are not limited by the
`district court's reasoning, and we "may affirm an order of
`dismissal on any basis made apparent by the record." Id.
`We begin with the Florida law claims against Lycos and
`Terra Networks. Because these claims are based, at least in part,
`2
`on the alleged impropriety of postings made by third parties on
`Raging Bull, UCS must contend with the statutory immunity provided
`by Section 230. UCS has attempted to plead around that immunity by
`casting its claims only in terms of Lycos's actions and by
`asserting causes of action that purportedly fall into one of the
`statutory exceptions to Section 230 immunity. Whatever the
`viability of UCS's legal theories in the abstract, however, the
`facts pleaded simply do not fit those theories. On the facts
`alleged, Congress intended that, within broad limits, message board
`operators would not be held responsible for the postings made by
`others on that board. No amount of artful pleading can avoid that
`result.
`
` Both before the district court and in this court, Terra
`2
`Networks has argued that, in addition to the bases for dismissal
`applicable to Lycos, the claims against it should be dismissed for
`lack of personal jurisdiction. Because we find that all claims
`against both Lycos and Terra Networks were properly dismissed for
`failure to state a claim, we need not reach this alternative
`argument. In the remainder of this opinion, we refer only to
`claims against Lycos, but the disposition of the claims against
`Terra Networks is the same.
`
`-11-
`
`

`
`A.
`
`Applicability of CDA Section 230 Immunity
`Section 230 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," 47 U.S.C. § 230(c)(1), and 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," id. § 230(e)(3).
`Thus, unless an exception applies, Lycos is immunized from a state
`law claim if: (1) Lycos is a "provider or user of an interactive
`computer service"; (2) the claim is based on "information provided
`by another information content provider"; and (3) the claim would
`treat Lycos "as the publisher or speaker" of that information.
`Although this court has not previously interpreted CDA
`Section 230, we do not write on a blank slate. The other courts
`that have addressed these issues have generally interpreted Section
`230 immunity broadly, so as to effectuate Congress's "policy choice
`. . . not to deter harmful online speech through the . . . route of
`imposing tort liability on companies that serve as intermediaries
`for other parties' potentially injurious messages." Zeran v. Am.
`Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997); see also
`Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123-24 (9th Cir.
`2003); Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980,
`985 n.3 (10th Cir. 2000). In Zeran, the Fourth Circuit noted the
`"obvious chilling effect" that such intermediary tort liability
`
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`
`could have, given the volume of material communicated through such
`intermediaries, the difficulty of separating lawful from unlawful
`speech, and the relative lack of incentives to protect lawful
`speech. 129 F.3d at 331. The Fourth Circuit also recognized the
`congressional purpose of removing the disincentives to self-
`regulation that would otherwise result if liability were imposed on
`intermediaries that took an active role in screening content. Id.
`In light of these policy concerns, we too find that
`Section 230 immunity should be broadly construed. In the context
`of this case, we have no trouble finding that Lycos's conduct in
`operating the Raging Bull web site fits comfortably within the
`immunity intended by Congress. In particular: (1) web site
`operators, such as Lycos, are "provider[s] . . . of an interactive
`computer service"; (2) message board postings do not cease to be
`"information provided by another information content provider"
`merely because the "construct and operation" of the web site might
`have some influence on the content of the postings; and (3)
`immunity extends beyond publisher liability in defamation law to
`cover any claim that would treat Lycos "as the publisher."
`1.
`"Interactive Computer Service" Provider
`There is no merit to UCS's suggestion that Lycos might
`not be a provider of an interactive computer service and so is not
`entitled to Section 230 immunity. The statute defines "interactive
`computer service" to be "any information service, system, or access
`
`-13-
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`
`software provider that provides or enables computer access by
`multiple users to a computer server, including specifically a
`service or system that provides access to the Internet." 47 U.S.C.
`§ 230(f)(2). A web site, such as the Raging Bull site, "enables
`computer access by multiple users to a computer server," namely,
`the server that hosts the web site. Therefore, web site operators,
`such as Lycos, are providers of interactive computer services
`within the meaning of Section 230.
`UCS argues that Lycos might not be such a provider
`because it "does not provide user access to the internet."
`Providing access to the Internet is, however, not the only way to
`be an interactive computer service provider. While such providers
`are "specifically" included, there is no indication that the
`definition should be so limited. Other courts have reached the
`same conclusion. See, e.g., Carafano, 339 F.3d at 1123.
`2.
`"Information Provided By Another"
`The message board postings to which UCS objects are, on
`their face, "information provided by another information content
`provider." Section 230 defines "information content provider" to
`be "any person or entity that is responsible, in whole or in part,
`for the creation or development of information provided through the
`Internet or any other interactive computer service." 47 U.S.C.
`§ 230(f)(3). This is a broad definition, covering even those who
`are responsible for the development of content only "in part." In
`
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`
`this case, it is clear that the individual posters on the Raging
`Bull web site are information content providers.
`A key limitation in Section 230, however, is that
`immunity only applies when the information that forms the basis for
`the state law claim has been provided by "another information
`content provider." Id. § 230(c)(1) (emphasis added). Thus, an
`interactive computer service provider remains liable for its own
`speech. See Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1262-63
`(N.D. Cal. 2006) (finding an online dating service not immune under
`Section 230 from claims that it "manufactured false profiles" and
`"sent profiles of actual, legitimate former subscribers whose
`subscriptions had expired" (internal quotation marks omitted)).
`It is, by now, well established that notice of the
`unlawful nature of the information provided is not enough to make
`it the service provider's own speech. See Zeran, 129 F.3d at 332-
`33; see also Barrett v. Rosenthal, 146 P.3d 510, 514, 525 (Cal.
`2006). We confirm that view and join the other courts that have
`held that Section 230 immunity applies even after notice of the
`potentially unlawful nature of the third-party content.
`UCS "emphasize[s]" that Lycos was "manifestly aware of
`the illegal nature of [the] subscriber postings," but does not rely
`on notice alone in arguing against immunity. UCS argues instead
`that Lycos "has involved itself with its subscriber[s']
`conduct/activities and/or rendered culpable assistance to its
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`-15-
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`
`registered subscribers to the Lycos Network, through the construct
`and operation of its web site," and that such conduct falls outside
`Section 230 immunity. UCS has alleged nothing, however, that
`suggests that Lycos should be considered to have been
`"responsible," even "in part," "for the creation or development" of
`the alleged misinformation. At best, UCS's allegations establish
`that Lycos's conduct may have made it marginally easier for others
`to develop and disseminate misinformation. That is not enough to
`overcome Section 230 immunity.
`In Carafano, the Ninth Circuit rejected the plaintiff's
`suggestion that an online dating service should have been
`considered a developer of a false profile because it provided the
`questionnaire that a user of the service answered falsely. 339
`F.3d at 1124-25. The court reasoned that the "underlying
`misinformation" that formed the basis for the complaint was
`contained entirely in the responses provided by the user, and that
`the particularly objectionable content "bore [no] more than a
`tenuous relationship to the actual questions asked." Id. at 1125.
`Compared to Carafano, the allegations in this case
`provide an even less substantial basis to find that Lycos was a
`developer of the alleged misinformation. UCS points to the fact
`that Lycos does not prevent a single individual from registering
`under multiple screen names, and to the fact that Lycos links sites
`providing objective financial information to the Raging Bull site.
`
`-16-
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`
`UCS's theory is that these features of the Raging Bull site make it
`possible for individuals to spread misinformation more credibly, by
`doing so under multiple screen names and in a context that is
`associated with objective content. In Carafano, the plaintiff at
`least had a colorable argument that the misinformation may have
`been prompted by the dating service's questions. Here there is not
`even a colorable argument that any misinformation was prompted by
`Lycos's registration process or its link structure. There is no
`indication that the Lycos features that UCS criticizes are anything
`but standard for message boards and other web sites. To impose
`liability here would contravene Congress's intent and eviscerate
`Section 230 immunity.
`In a related argument, UCS argues that Lycos has provided
`"culpable assistance" to subscribers wishing to disseminate
`misinformation, and hence Lycos exceeded the bounds of Section 230
`immunity. UCS draws an analogy to the copyright case of MGM
`Studios, Inc. v. Grokster, Ltd., 125 S. Ct. 2764 (2005). In
`Grokster, the Supreme Court held that copyright liability could be
`premised on a theory of active inducement of infringement, so that
`"one who distributes a device with the object of promoting its use
`to infringe copyright, as shown by clear expression or other
`affirmative steps taken to foster infringement, is liable for the
`resulting acts of infringement by third parties." Id. at 2770.
`
`-17-
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`
`UCS argues that, similarly, Lycos should enjoy no immunity if it
`actively induces its subscribers to post unlawful content.
`It is not at all clear that there is a culpable
`assistance exception to Section 230 immunity. The language of
`"culpable assistance" used by UCS appears to have been drawn from
`Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003). But that
`court used the language in the context of determining whether the
`defendant might be secondarily liable under the Electronic
`Communications Privacy Act of 1986 (ECPA), Pub. L. No. 99-508, 100
`Stat. 1848 (codified as amended in scattered sections of 18
`U.S.C.). We note that liability under the ECPA is specifically
`exempted from Section 230 immunity. See 47 U.S.C. § 230(e)(4).
`There is no ECPA claim here. Similarly, Grokster itself was a
`copyright case, and secondary liability for copyright infringement
`is not affected by Section 230 because intellectual property laws
`are also exempted. See id. § 230(e)(2).
`We need not decide whether a claim premised on active
`inducement might be consistent with Section 230 in the absence of
`a specific exception. Even assuming arguendo that active
`inducement could negate Section 230 immunity, it is clear that UCS
`has not alleged any acts by Lycos that come even close to
`constituting the "clear expression or other affirmative steps taken
`to foster" unlawful activity that would be necessary to find active
`inducement. See Grokster, 125 S. Ct. at 2770. UCS relies in part
`
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`
`on Lycos's registration process and link structure; as described
`above, these are standard elements of web sites "with [both] lawful
`and unlawful potential," see id. at 2780, and hence, without more,
`cannot form the basis to find inducement. UCS's complaint also
`cites the fact that Lycos has taken legal action to protect its
`subscribers, including moving to quash subpoenas and intervening in
`relevant cases. Actions taken to protect subscribers' legal
`rights, however, cannot be construed as inducement of unlawful
`activity, and UCS does not allege that Lycos lacked a reasonable
`basis for its legal activities. Cf. Prof'l Real Estate Investors,
`Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 51 (1993)
`("[L]itigation cannot be deprived of [antitrust] immunity as a sham
`unless the litigation is objectively baseless."). The
`"unmistakable" evidence of an "unlawful objective" found in
`Grokster, 125 S. Ct. at 2782, is entirely absent here.3
`Thus, it is clear that, taking UCS's allegations as true,
`Lycos has done nothing in this case that might make the
`
` UCS also argues that because it bases its claims on Lycos's
`3
`alleged "intentional misconduct," those claims are not subject to
`Section 230 immunity. It is not clear how UCS is using the phrase
`"intentional misconduct." If this refers to Lycos's acting
`intentionally with knowledge of the third-party misinformation,
`then such claims are barred under our holding that notice does not
`preclude Section 230 immunity. If this refers to Lycos's acting
`with intent to harm UCS, then this is a variant on an active
`inducement theory, which, as we have described, has no basis in
`UCS's factual allegations.
`
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`misinformation at issue its own, rather than that of "another
`information content provider."
`3.
`Treatment "as the Publisher"
`Finally, liability under either the Florida securities
`law or the Florida cyberstalking law would involve treating Lycos
`"as the publisher" of the misinformation. UCS's securities claims
`4
`are based on the theory that individuals were taking a short
`position in UCS stock and then spreading misinformation to depress
`the stock price, so as to profit from their short position. There
`5
`is no allegation that Lycos has been involved in any UCS stock
`transactions; thus, any liability against it must be premised on
`imputing to it the alleged misinformation, that is, on treating it
`
` On the federal cyberstalking claim under 47 U.S.C. § 223, in
`4
`addition to finding the claim barred by Section 230, the district
`court also found that the cyberstalking statute does not provide a
`private right of action. UCS does not challenge this dispositive
`ruling on appeal, so we affirm the dismissal of the claim on that
`basis, expressing no view on the appropriateness of applying
`Section 230 immunity to a putative civil claim under 47 U.S.C.
`§ 223. See 47 U.S.C. § 230(e)(1) ("Nothing in this section shall
`be construed to impair the enforcement of section 223 or 231 of
`this [title 47], . . . or any other Federal criminal statute."
`(emphasis added)).
`Nor do we express a view on whether the specific exception in
`§ 230(e)(1) for federal criminal statutes might apply to analogous
`state statutes. UCS's brief might be read to suggest something
`along these lines, but "issues adverted to in a perfunctory manner,
`unaccompanied by some effort at developed argumentation, are deemed
`waived." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
` To take a short position in a stock means to sell borrowed
`5
`stock at the current price in the hope that the stock price will
`decline and the borrower will be able to return the borrowed stock
`by purchasing it at the later, lower price.
`-20-
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`
`as the publisher of that information. Similarly, the alleged
`6
`cyberstalking involves only the publication of a series of postings
`on the Raging Bull web site. Again, Lycos's liability would depend
`on treating it as the publisher of those postings.
`UCS argues that the prohibition against treating Lycos
`"as the publisher" only immunizes Lycos's "exercise of a
`publisher's traditional editorial functions -- such as deciding
`whether to publish, withdraw, postpone or alter content," Zeran,
`129 F.3d at 330, and not its decisions regarding the "construct and
`operation" of its web sites. This argument misapprehends the scope
`of Section 230 immunity. If the cause of action is one that would
`treat the service provider as the publisher of a particular
`posting, immunity applies not only for the service provider's
`decisions with respect to that posting, but also for its inherent
`decisions about how to treat postings generally. UCS is ultimately
`alleging that the construct and operation of Lycos's web sites
`contributed to the proliferation of misinformation; Lycos's
`decision not to reduce misinformation by changing its web site
`policies was as much an editorial decision with respect to that
`misinformation as a decision not to delete a particular posting.
`Section 230 immunity does not depend on the form that decision
`takes. See Green v. Am. Online (AOL), 318 F.3d 465, 470 (3d Cir.
`
` We express no view on the viability of such a claim, absent
`6
`Section 230 immunity.
`
`-21-
`
`

`
`2003) (finding that liability for the "alleged negligent failure to
`properly police [AOL's] network for content transmitted by its
`users . . . would 'treat' AOL 'as the publisher or speaker' of that
`content").
`
`We hold that, given the allegations in UCS's complaint,
`liability for Lycos under either the Florida securities statute or
`the Florida cyberstalking statute would involve treating Lycos "as
`the publisher" of "information provided by another information
`content provider." Thus, we affirm the district court's ruling
`that both claims are barred by Section 230.
`B.
`Trademark Dilution
`UCS's remaining claim against Lycos was brought under
`Florida trademark law, alleging dilution of the "UCSY" trade name
`under Fla. Stat. § 495.151. Claims based on intellectual property
`laws are not subject to Section 230 immunity. See 47 U.S.C.
`§ 230(e)(2) ("Nothing in this section shall be construed to limit
`or expand any law pertaining to intellectual property."); see also
`Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 413
`(S.D.N.Y. 2001) (finding that the "plain language of Section
`230(e)(2) precludes [the defendant's] claim of immunity" from a
`claim for trademark infringement).
`Thus, "the pivotal issue for consideration here is
`whether Plaintiff's complaint would withstand a motion to dismiss
`even in the absence of § 230." Id. at 412. We hold that, because
`
`-22-
`
`

`
`of the serious First Amendment issues that would be raised by
`allowing UCS's claim here, the claim would not survive, even in the
`absence of Section 230.7
`During the relevant time period, Fla. Stat. § 495.151
`(2006) provided that one who adopts and uses a trademark or trade
`name has a cause of action
`to enjoin subsequent use by another of the
`same or any similar mark [or] trade name . . .
`if it appears to the court that there exists a
`likelihood of injury to business reputation or
`of dilution of the distinctive quality of the
`mark [or] trade name . . . of the prior user,
`notwithstanding the absence of competition
`between the parties or of confusion as to the
`source of goods or services.8
`UCS's theory is that Lycos is liable under this statute for
`suggesting to its subscribers that they use the "'UCSY' mark for
`designation of a message board on the Raging Bull web site" and
`then "contribut[ing] to the development" of misinformation on that
`message board and failing to remove such misinformation. UCS
`
` After noting the same First Amendment concerns, the district
`7
`court held that UCS's trademark claim was "effectively . . . a
`defamation claim in the guise of an antidilution claim," and that
`"Lycos and Terra would therefore be shielded from [the claim] by
`CDA immunity." We reason somewhat differently, holding

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