U.S. District Court for the District of New Hampshire held on March 27 in Doe v. Friendfinder Network, Inc., that an invasion of privacy claim premised on a "law pertaining to intellectual property" is not affected by the CDA.
The CDA explicitly exempts intellectual property claims from immunity protection; however, the issue of whether interactive computer services are immune from state-law intellectual property claims, such as the right of publicity, has produced conflicting judicial opinions. Here, the court, declining to follow the Ninth Circuit's decision in Perfect 10, Inc. v. CCBill, 488 F3d 1102 (9th Cir 2007), held that the plaintiff's right of publicity under state law was an intellectual property right excluded from CDA immunity provisions for interactive computer service providers.
The plaintiff filed a lawsuit against Friendfinder, an adult-themed web site, after an anonymous party created a page on the service including the plaintiff's biographical data and a nude photo, purportedly of the plaintiff.
The plaintiff raised invasion of intellectual property, defamation, intentional/negligent reckless conduct, intentional infliction of emotional distress, and other state law claims. The court dismissed all the claims except the right of publicity claim on the grounds that CDA §230 shielded the site from liability for information provided by third parties.
"The right of publicity is a widely recognized intellectual property right . . . [which] therefore arises out of a 'law pertaining to intellectual property' within the meaning of the statute," the court held.
The site argued that, because the right of publicity safeguards a beneficial use of a plaintiff's identity, the plaintiff could not succeed unless she claimed her identity lost commercial value as a result of the site's use of it. The court disagreed.
I'm not sure how this ruling marries with other rulings of the right to publicity and invasion of privacy, but it is interesting. This starts to open a big hole in the protections generally thought of as to afford protections to Interactive Service Providers.
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