Procedure matters. It matters whether a defendant can dispose of a litigation right out of the gate, or whether the defendant must suffer the slings and arrows of discovery, motions, and trial before presenting a successful defense.

Procedurally, once a litigation has been initiated, defendant has a chance to say, “hey, wait a minute, there isn’t actually a cause of action here.” It’s like someone suing me for being tall. Well, yeah, but there is no recognized cause of action against being tall. And a motion to dismiss for failure to state a claim would end the litigation right out of the gate.

Alternatively, defendant might have a defense, but must establish evidence supporting that defense. For example, I may have said that Zim is an Irken weenie, and Zim may sue me, but availing myself to truth-is-a-defense, I can prove in court that Zim is in fact an Irken weenie. I may have been successful, but I will now receive a successful legal defense bill from my attorney.

47 U.S.C. § 230(c) protects interactive services from liability for third party content. But is this an immunity or an affirmative defense? Can I use Sec. 230(c) to exterminate a litigation right out of the gate, or must I wait for the facts of the case to be developed?

Today’s case, Evans v. HEWLETT-PACKARD COMPANY, Dist. Court, ND California Oct. 10, 2013, explores this question. It involves software called “The Chubby Checker” which was produced by a third-party and offered for sale through the HP App Catalogue. Suffice it to say that the title of the software was, as the court stated, “a vulgar pun.” Chubby Checker, the entertainer, sued.

Plaintiff alleged federal trademark infringement and dilution, and state causes of action including unfair competition, unauthorized use of his name, and unauthorized use of his likeness. Sec. 230(e) says that Sec. 230(c) has no effect on intellectual property law; thus the court did not dismiss those claims. However, the rest of plaintiff’s claims “were held barred by the preemption provision in Section 230.” Defendant’s app store is an online interactive service; the app in question is content produced by a third party.

Plaintiff attempted to solve this problem by amending its complaint and adding some more causes of action. Plaintiff argued, in the first place, that Sec. 230 is an affirmative defense and not proper for a motion to dismiss. Before defendant can get out of this litigation, we need to get into the facts of the case, argues plaintiff.

Some courts have been uncomfortable with letting defendants cash-in their “Get Out of Litigation Free” cards so easily. For these courts, Sec. 230(c) does not create an immunity. See City of Chicago v. StubHub!, Inc., 624 F.3d 363, 366 (7th Cir. 2010); Barnesv. Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir. 2009). On the other hand, “[o]rdinarily, courts aim to resolve the question of § 230 immunity at the earliest possible stage of the case because that immunity protects websites not only from ‘ultimate liability,’ but also from ‘having to fight costly and protracted legal battles.’” Nemet Chevrolet v. Consumeraffairs.com, 591 F.3d 250, 255 (4th Cir. 2009). And while some courts have been hesitant to cash in those “Get Out of Litigation Free cards” (perhaps originally due to a lack of familiarity with the plumbing and business models of the Internet), the Evans court recognizes that a consensus has been developing across the courts of appeals “that § 230(c) provides broad immunity for publishing content provided primarily by third parties.” Carafano v. Metrosplash.com Inc., 339 F.3d 1119, 1123 (9th Cir. 2003). Consideration of Sec. 230 preemption is appropriate at the pleading state in a motion to dismiss; defendant can terminate the litigation right out of the gate.

But then, maybe this “is it an immunity or an affirmative defense” thing doesn’t really matter (at least, in the 9th Circuit Court of Appeals). The Evans court leaves us with this thought:

[O]ur court of appeals has held that “the assertion of an affirmative defense may be considered properly on a motion to dismiss where the ‘allegations in the complaint suffice to establish’ the defense.”

In other words, whatever you call it, if plaintiff’s complaint doesn’t have a leg to stand on, there is no reason for the litigation to proceed. If Sec. 230(c) protects interactive services from liability, it would be nice if it also protected interactive services from futile litigation expenses.