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The Perfect 10 v. CCBill decision from the 9th Circuit on March 29 was amended last Thursday to add a footnote regarding the meaning of “intellectual property” in Sec. 230 (the CDA). It responds to a point in Perfect 10′s petitions for rehearing and rehearing en banc (which were denied) that the 9th Circuit’s holding created a conflict with the 1st Circuit in Univ. Communication. In the added footnote (reproduced in full below) the 9th Circuit takes an even stronger stand that “intellectual property” under 230 can only mean federal “intellectual property” laws and not state laws. It also denies the existence of any circuit split.

The opinion filed on March 29, 2007, is amended as fol-lows:

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On slip opinion page 3577, line 33, after “federal intellec-tual property.” insert the following footnote:

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In its petition for rehearing, Perfect 10 claims that our deci-sion on this point conflicts with Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007). But neither party in that case raised the question of whether state law counts as “intellectual property” for purposes of § 230 and the court seems to simply have assumed that it does. We thus create no conflict with Universal Communication.

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We note that Universal Communication demon-strates the difficulties inherent in allowing state laws to count as intellectual property for CDA purposes.

In that case, the district court struggled with the question of whether the “trademark dilution” claim brought under Florida Law counted as intellectual property for purposes of the CDA, and concluded that it was more like a defamation claim than a trade-mark claim. Id. at 423 n.7. Rather than decide how to draw the line between defamation and trademark, the First Circuit held that “because of the serious First Amendment issues that would be raised” if Lycos were found liable, defendant had not violated the Florida statute. Id. at 423.

The First Circuit was able to sidestep the question of what counted as intellectual property on First Amendment grounds. But we cannot do so here. States have any number of laws that could be characterized as intellectual property laws: trademark, unfair competition, dilution, right of publicity and trade defamation, to name just a few. Because such laws vary widely from state to state, no litigant will know if he is entitled to immunity for a state claim until a court decides the legal issue. And, of course, defendants that are otherwise entitled to CDA immunity will usually be subject to the law of numerous states. An entity otherwise entitled to § 230 immunity would thus be forced to bear the costs of litiga-tion under a wide variety of state statutes that could arguably be classified as “intellectual property.” As a practical matter, inclusion of rights protected by state law within the “intellectual property” exemption would fatally undermine the broad grant of immunity provided by the CDA.

With this amendment, the panel has voted to deny the peti-tion for rehearing and petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it.

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