Third Circuit Takes An Anti-Platform View In Interpreting The Communications Decency Act, Creating A Circuit Split

• Published date: 01 November 2021
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, IT and Internet, Copyright, Patent
• Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP
• Author: Ms Jana S. Farmer, Gillian A. Fisher, Daniel J. Taylor and Leia Leitner

Since the emergence of the internet nearly four decades ego, the United States has sought to promote the freedom of the internet domestically and abroad. In the early 1990s, Congress enacted laws that aimed to promote the internet and foster the still largely unregulated free market online while at the same time placing restrictions on some objectionable conduct.

The 1996 Communications Decency Act (CDA) is one such law. Recognizing the need for rapid and free communications, the CDA bars attempts to treat website platforms as publishers or speakers of the content spoken by others and allows platforms to make their own moderation decisions. Section 230(c) of the CDA creates a statutory immunity for platforms with respect to lawsuits arising out of the information posted by another content provider. This immunity is not unlimited, however. Subsection 230(e) carves out five limitations, including that "nothing in [section 230] shall be construed to limit or expand any law pertaining to intellectual property."

Another law enacted to promote the freedom on the internet is the Digital Millennium Copyright Act of 1998 (DMCA), which sought to balance the interests of website platform owners who host content posted by their users against the interests of copyright holders, giving the former immunity to claims of copyright infringement so long as the website promptly removes infringing materials after a copyright holder gives the required notice, and the website operator meets other statutorily defined requirements. As these laws are now being interpreted by the courts (at least in the Third Circuit), some of the freedoms that platforms have come to expect may be at risk.

Recent Expansion of "Any Law Pertaining to Intellectual Property"

The recent decision of the United States Court of Appeals for the Third Circuit in Hepp v. Facebook, et al., No. 20-2725 (3d Cir. 2021), examined the scope of the "any law pertaining to intellectual property" carveout, ultimately choosing to significantly expand it to include not only state intellectual property laws but also the "nontraditional" intellectual property laws (as distinguished from the traditional IP laws: patent, copyright and trademark), including the right of publicity. Faced with the arguments that it is acting to defeat the purpose of the CDA by promoting the internet "unfettered" by changing any unpredictable laws of the 50 states, the Third Circuit took pains to note that its decision is limited to holding that...