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March 26, 2021

Lit Alerts—March 2021

A Publication of the Litigation Practice Group

Website Immunity for Blocking Third-Party Content: Second Circuit Upholds Section 230 Immunity for Internet Service Provider

The Communications Decency Act (CDA), enacted in 1996, contains a narrow provision with two main parts, known colloquially as Section 230. The first part of Section 230 states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C § 230(c)(1). The second protects a "provider or user of an interactive computer service" from civil liability if that actor "in good faith" takes any voluntary act to "restrict access to" information or material it deems "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected," or if that actor takes action to make available the technical means to restrict access to such material. 47 U.S.C § 230(c)(2).

In Domen v. Vimeo, Inc., No. 20-616, 2021 WL 922749 (2d Cir. Mar. 11, 2021), the Second Circuit recently ruled that broad immunity under Section 230 protects internet providers who block third-party content they deem objectionable from liability. The case was brought by James Domen, a pastor and self-described "former homosexual," who, through Church United in California, a not-for-profit religious organization, joined Vimeo and began to upload videos relating to, among other things, sexual orientation, the stories of "former homosexuals," and sexual orientation change efforts (SOCE).

Vimeo ultimately deleted Church United's entire account after it failed to remove videos that Vimeo informed it violated terms of service with relation to SOCE. On appeal, the Second Circuit agreed with the trial court's holding that Section 230 preempted the user's state and constitutional law claims. Relying on subsection (c)(2) of Section 230, the Second Circuit explained that "Vimeo is statutorily entitled to consider SOCE content objectionable and may restrict access to that content as it sees fit." The court also rejected arguments that Vimeo acted in "bad faith" or that its deletion of the account was "anti-competitive conduct or self-serving behavior in the name of content regulation." Rather, the court explained, Vimeo's decision to delete the account "was a straightforward consequence of Vimeo's content policies, which Vimeo communicated to Church United prior to deleting its account."

Copyright: Eleventh Circuit Shuts Down the Party for Online Aggregator of RSS Feed Content

Clarifying the legal test for the affirmative defense of implied license in a copyrighted work, the Eleventh Circuit affirmed a jury's assessment of statutory infringement damages against an online content aggregator in MidlevelU, Inc. v. ACI Information Group, No. 20-10856, 2021 WL 805534 (11th Cir. Mar. 3, 2021). A website operator sought statutory damages for copyright infringement after a content aggregator posted content that originally was published on the website's RSS feed. The content aggregator argued that publishing the content on the website's RSS feed was an implied license that allowed it to republish the content on its own site.

On appeal, the Eleventh Circuit affirmed judgment as a matter of law for the plaintiff on the implied license defense, holding that the defendant failed to present sufficient evidence to create an issue for the jury. Among other things, the court explained that while an implied license defense can apply outside the context of a work for hire, it did not apply here. Nor could the defendant rely on cases finding that, based on industry custom, search engines such as Google and Yahoo may have an implied license to use web crawlers to archive the content of a website. Likening a website to a piece of real property, the court reasoned that "[i]mplied permission to enter through a front door (web crawler) does not also imply permission to enter through a back window (RSS feed)." Finally, the court agreed that the defendant failed to present evidence of an industry practice that the dissemination of content "through an RSS feed without restriction implies permission to copy and publish that content on another website." Again analogizing to real-property licenses, the court concluded that "[i]mplied permission to enter the front door to shop (read the content through an RSS reader for personal purposes) does not imply permission to enter and throw a party (sell computer-generated summaries paired with [embedded windows] showing the full-text content)."

Subject Matter Jurisdiction: Reframing a Challenge to an Agency Decision as a Dispute for Breach of Contract Does Not Grant the Court of Federal Claims Jurisdiction

In Taylor Energy Co. v. Department of the Interior, No. 2020-1909, 2021 WL 865359 (Fed. Cir. Mar. 9, 2021), the Federal Circuit held that the Court of Federal Claims did not have subject matter jurisdiction over Taylor's $10.4 million purported breach of contract claim against the Department of the Interior (Interior) because that claim ultimately sought review of a decision by the Interior Board of Land Appeals (IBLA), which is the jurisdiction of federal district courts.

Taylor operated oil and gas properties in the Gulf of Mexico. In 2004, its offshore site was damaged by Hurricane Ivan and leaked oil; consequently, Taylor was required by statute to decommission the site. Taylor entered into three agreements with Interior related to the decommissioning costs, and Interior reached two decisions adverse to Taylor concerning these agreements. Taylor appealed both to the IBLA, and the IBLA affirmed.

Taylor then filed two lawsuits against Interior: the first in the Eastern District of Louisiana seeking judicial review of the IBLA decision pursuant to the Administrative Procedure Act and the second in the Claims Court alleging breach of contract. The Claims Court dismissed its action due to the substantially similar case pending in district court. Taylor next moved to transfer its district court action—the suit at issue here—to the Claims Court, arguing that "in essence the case is a breach of contract case involving the government's incorrect interpretation of agreements with Taylor." The district court granted the motion to transfer, finding the Tucker Act "provides the exclusive basis for the assertion of contract claims against the United States." Interior appealed.

The Federal Circuit reversed and remanded. To "determin[e] whether a suit belongs in a district court under the APA, or in the Claims Court under the Tucker Act, the [court considers whether] the Court of Federal Claims [can] provide an adequate remedy under the Tucker Act for the alleged wrong." Although Taylor "purport[ed] to assert a breach of contract claim," the court focused on Taylor's request that the Claims Court "reverse, set aside, and vacate" the IBLA decision. Noting that IBLA decisions are binding in related suits before the Claims Court, the court of appeals concluded that the Claims Court could not provide Taylor with an "adequate remedy" because it could not set aside the IBLA decision as Taylor requested. Thus, the Claims Court did not have jurisdiction over Taylor's case.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.