Legal Memorandum: Immunity for Intellectual Property Claims

Issue: Can intellectual property claims be barred by section 230 of the Communications Decency Act (‘CDA’) (47 U.S.C. 230)?

Section 230 of the Communications Decency Act (“CDA”) (47 U.S.C. § 230) provides immunity under certain circumstances to a website operator for its publication of third-party content.  Claims that are otherwise subject to section 230 immunity may still be excepted or “carved-out” from the grant of immunity if they are intellectual property claims.  The relevant provision provides:

(2)        No effect on intellectual property law.

Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

47 U.S.C. § 230(e)(2).  Most courts construing this provision conclude that all claims based on intellectual property laws, state or federal, are not subject to section 230 immunity.  Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 704 (S.D.N.Y. 2009) (collecting cases).

Although the statute itself does not define the term “intellectual property,” it is generally recognized that

‘Intellectual Property’ is a broad concept, often defined to include the following types of rights: patents, trademarks, copyrights, trade secrets, moral rights, rights of publicity, and rights against unfair competition. Thus, it is commonly accepted that the term ‘intellectual property’ includes more than just patents, trademarks, and copyrights.”

Xerox Corp. v. Arizona Digital Prods., Inc., No. 08-cv-6480 (CJS), at *7 (W.D.N.Y. Sept. 15, 2009) (quoting General Intangible or Commercial Tort: Moral Rights and State–Based Intellectual Property as Collateral under U.C.C. Revised Article 9, 22 Emory Bankr. Dev. J. 95, 101 (Fall […]