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e-Commerce Docket Sheet

By ALM Staff | Law Journal Newsletters |
June 26, 2008

CDA Immunity Not Applicable To Allegedly Misleading Auction Safety Statements

Immunity under Section 230 of the Communications Decency Act ('CDA') is not applicable to an online auction Web site's allegedly misleading statements regarding the safety, circumstances and caliber of its live auctions. Mazur v. eBay Inc., 2008 U.S. Dist. LEXIS 16561 (N.D. Cal. Mar. 4, 2008). The court denied the Web site's motion to dismiss the plaintiff's breach-of-contract and other state-law causes of action relating to the plaintiff's claims of shill bidding and unfair practices during a live auction. The court found that unlike prior decisions granting immunity to Web sites for inaccurate listings or unauthorized online profiles, which fell within a publisher's editorial function, the site's own promises concerning auction safety created 'an expectation regarding the procedures and manner in which the auction is conducted and consequently goes beyond traditional editorial discretion.' However, the court ruled that CDA immunity barred any of the plaintiff's claims that the site knew of the seller's illegal conduct and failed to prevent it, holding that such claims were 'akin to deciding whether to publish' and therefore the site is immune under Section 230 for its screening decisions.

Copying Web Site Page for Consumer Gripe Site Is Deemed Fair Use

The copying of a page from a company's Web site for use on a non-commercial site that offered criticism of certain of the company's practices is protected by the fair-use defense. Super Future Equities, Inc. v. Wells Fargo Bank Minnesota, N.A., 2008 U.S. Dist. LEXIS 21501 (N.D. Tex. Mar. 17, 2008). The court dismissed one of the defendant's copyright counterclaims stemming from the unauthorized copying of its Web page. While the court found that the use of the Web page was non-transformative, it ruled that in light of the minimal creativity of the page containing mostly factual text, and the nature of the copyrighted work, the individual's copying weighed in favor of fair use. In deeming the amount and substantiality of the use, the court held that the whole of the copyrighted work is the Web page, not the entire Web site, rejecting the plaintiff's argument that it had copied only one page from a multi-page Web site. Ultimately, the court concluded that in light of the non-commercial nature of the use, the availability of the Web page on the Internet, and the lack of effect on the market, the plaintiff's copying constituted fair use.

Famous Trademark Parody on Goods Without Consumer Confusion No Infringement

A critical parody of a famous retailer's trademark on various novelty goods sold from a Web site that does not lead the public to think mistakenly that the trademark owner sponsored or approved the satirical representation cannot be deemed trademark infringement or dilution. Smith v. Wal-Mart, 2008 U.S. Dist. LEXIS 22776 (N.D. Ga. Mar. 20, 2008). The court granted the defendant's motion for summary judgment on all claims. The court found that the defendant's novelty t-shirts and products evoking the plaintiff's trademark were a successful parody, commenting that 'the strength of the mark may actually cut against likelihood of confusion because consumers are more likely to recognize that a very famous mark 'is being used in jest.'” The court also held that the defendant's parodic works were principally non-commercial speech protected by the First Amendment, despite the fact that the defendant might also secondarily benefit economically from online sales of his products.

e-Commerce Docket Sheet was written by Julian S. Millstein, Edward A. Pisacreta and Jeffrey D. Neuburger, partners in the New York office of Thelen Reid Brown Raysman & Steiner LLP (www.thelen.com).

CDA Immunity Not Applicable To Allegedly Misleading Auction Safety Statements

Immunity under Section 230 of the Communications Decency Act ('CDA') is not applicable to an online auction Web site's allegedly misleading statements regarding the safety, circumstances and caliber of its live auctions. Mazur v. eBay Inc., 2008 U.S. Dist. LEXIS 16561 (N.D. Cal. Mar. 4, 2008). The court denied the Web site's motion to dismiss the plaintiff's breach-of-contract and other state-law causes of action relating to the plaintiff's claims of shill bidding and unfair practices during a live auction. The court found that unlike prior decisions granting immunity to Web sites for inaccurate listings or unauthorized online profiles, which fell within a publisher's editorial function, the site's own promises concerning auction safety created 'an expectation regarding the procedures and manner in which the auction is conducted and consequently goes beyond traditional editorial discretion.' However, the court ruled that CDA immunity barred any of the plaintiff's claims that the site knew of the seller's illegal conduct and failed to prevent it, holding that such claims were 'akin to deciding whether to publish' and therefore the site is immune under Section 230 for its screening decisions.

Copying Web Site Page for Consumer Gripe Site Is Deemed Fair Use

The copying of a page from a company's Web site for use on a non-commercial site that offered criticism of certain of the company's practices is protected by the fair-use defense. Super Future Equities, Inc. v. Wells Fargo Bank Minnesota, N.A., 2008 U.S. Dist. LEXIS 21501 (N.D. Tex. Mar. 17, 2008). The court dismissed one of the defendant's copyright counterclaims stemming from the unauthorized copying of its Web page. While the court found that the use of the Web page was non-transformative, it ruled that in light of the minimal creativity of the page containing mostly factual text, and the nature of the copyrighted work, the individual's copying weighed in favor of fair use. In deeming the amount and substantiality of the use, the court held that the whole of the copyrighted work is the Web page, not the entire Web site, rejecting the plaintiff's argument that it had copied only one page from a multi-page Web site. Ultimately, the court concluded that in light of the non-commercial nature of the use, the availability of the Web page on the Internet, and the lack of effect on the market, the plaintiff's copying constituted fair use.

Famous Trademark Parody on Goods Without Consumer Confusion No Infringement

A critical parody of a famous retailer's trademark on various novelty goods sold from a Web site that does not lead the public to think mistakenly that the trademark owner sponsored or approved the satirical representation cannot be deemed trademark infringement or dilution. Smith v. Wal-Mart, 2008 U.S. Dist. LEXIS 22776 (N.D. Ga. Mar. 20, 2008). The court granted the defendant's motion for summary judgment on all claims. The court found that the defendant's novelty t-shirts and products evoking the plaintiff's trademark were a successful parody, commenting that 'the strength of the mark may actually cut against likelihood of confusion because consumers are more likely to recognize that a very famous mark 'is being used in jest.'” The court also held that the defendant's parodic works were principally non-commercial speech protected by the First Amendment, despite the fact that the defendant might also secondarily benefit economically from online sales of his products.

e-Commerce Docket Sheet was written by Julian S. Millstein, Edward A. Pisacreta and Jeffrey D. Neuburger, partners in the New York office of Thelen Reid Brown Raysman & Steiner LLP (www.thelen.com).
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