Does the CDA Bar State IP Claims?

It is clear that there is no immunity under the Communications Decency Act of 1996 (CDA), 47 U.S.C. '230 (available online at http://bit.ly/ucKA3h), for copyright, patent and trademark law. And while the Digital Millennium Copyright Act of 1998 (DMCA) provides potential safe harbors for monetary damages in copyright infringement claims resulting from user-generated content (UGC) stored at the direction of users on a sponsor's sites or servers, there is simply no safe harbor or immunity for online publishers for patent and trademark claims.

What remains an open question ' and the subject of conflicting judicial interpretations ' is whether state intellectual property claims such as appropriation of rights of publicity are barred by Section 230. In one interpretation from the U.S. Court of Appeals for the Ninth Circuit, the carve-out from immunity has been held to include only federal intellectual property law, and not state law claims arguably sounding in intellectual property, such as unfair competition based on trademark infringement or rights of publicity. See, Perfect 10 v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007), cert. denied 128 S.Ct. 709 (2007); see also, Carafano v. Metrosplash.com Inc., 339 F.3d 1119 (9th Cir. 2003) (dismissing invasion-of-privacy and right of publicity claims by a famous actress against a dating website that hosted an anonymously submitted, malicious, false and defamatory putative dating profile of the actress).