This week the Ninth Circuit issued two opinions that apply longstanding legal concepts to novel, Internet-based disputes.
The first case addresses a clash between two federal statutes: the Fair Housing Act and the 10-year-old Communications Decency Act. The FHA prohibits, among other things, publishing discriminatory advertisements for housing. The CDA, meanwhile, states that a provider of an "interactive computer service" cannot be treated as a publisher of content provided by others. In Fair Housing Council v. Roommate.com, plaintiff claimed that Roommate.com, an online roommate matching web site, violated the FHA by publishing listings stating discriminatory preferences. Roommate.com argued that it was merely an Internet-based conduit for information provided by others, shielding it from liability
under the CDA. Judge Alex Kozinski disagreed, noting that the listings were in the form of questionnaires provided by Roommate.com, thus making Roommate.com responsible for the creation or development of the content and taking it outside of the CDA shield.
For further discussion of the CDA shield, see this Oregon Business Litigation blog item from November 2006.
In Perfect 10, Inc. v. Amazon.com, Inc., the issue was whether the Google search engine violates copyright law. In particular, do links on a Google search illegally facilitate access to a third party's images and web sites which infringe on plaintiff's copyright? The Ninth Circuit considered the legality of both thumbnail images from infringing web sites accompanying Google search results, and search results providing links to infringing web sites. Judge Sandra S. Ikuta wrote that the thumbnail images constituted "fair use" and did not infringe on plaintiff's copyright. But the court remanded the second issue to the district court, directing it to reconsider whether Google's links illegally assist users to access infringing sites.
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