The CDA “content” divide

odd-couple.jpgWhen does an interactive website pass across the great divide of “content provider” versus “Internet service provider” under what’s left of the Communications Decency Act?  IP Law Chat reports about a Ninth Circuit case involving Roommates.com, which is what it sounds like — it’s a website for finding a roommate. Obviously it’s also a social networking site (I mean, you know… “roommates,” you know?), so this decision could have wide application:

The Ninth Circuit characterized the question before it as whether Roommates.com was “responsible, in whole or in part, for creating or developing the information” on the website, in which case it would become a “content provider” and would not be entitled to CDA immunity. The Court apparently had no problem concluding that Roommates.com was a content provider in connection with the questionnaires it asked users to complete because it created or developed the forms and answer choices.

The Court then turned to “the more difficult question” of whether Roommates.com was also a content provider subject to liability “for publishing and distributing its members’ profiles, which it generates from their answers to the form questionnaires.” Given this characterization of the question, it is probably not surprising that the Court concluded that Roommates.com was also a content provider in this context because it “categoriz[ed], channel[ed] and limit[ed] the distribution of user’s profiles,” thereby providing “an additional layer of information that it is ‘responsible’ at least ‘in part’ for creating or developing.”

Sounds about right, doesn’t it? Sure, it’s all in the “characterization” — isn’t it always? — but this seems like a fairly accurate one, as anyone who’s ever used a social networking site will agree. Clearly, others involve far less editorial discretion, or none at all. The Ninth Circuit says there is no free pass on CDA immunity; if you want to live with it, you need to do your diligence. Unlike some roommates, this one seems decent enough.

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Author:Ron Coleman

I write this blog.

One Response to “The CDA “content” divide”

  1. November 23, 2009 at 11:44 am #

    Hi Ron,

    Nice blog you have… especially as its name perfectly matches the issue I am currently working on in my doctoral thesis. However I am focusing in my thesis on the likeliness of confusion in relation to the use of trademark as keywords in “Online/Keyword Advertising”.

    Having said that I I finally disclose why I’m write all this; please find attached a link about empirical research on the issue of likeliness on confusion in relation to online advertising.

    (http://austrotrabant.wordpress.com/2009/10/27/empirical-research-of-the-users-perspective-of-keyword-advertising/)

    and

    a: be so kind to flip through it (approx 7mins reading time),

    b: feel most welcome to disagree with me on the issue or on the conclusions I’ve drawn,

    c: please point out if you are aware of any empirical studies/papers on the topic I apparently have missed.

    Kind regards from Austria!