Black et al v. Google Inc.

Filing 20

Reply in Support of its 10 Motion to Dismiss Plaintiffs' Complaint filed byGoogle Inc.. (Kramer, David) (Filed on 7/29/2010) Modified on 7/30/2010 (cp, COURT STAFF).

Black et al v. Google Inc.

Doc. 20

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DAVID H. KRAMER, State Bar No. 168452 BART E. VOLKMER, State Bar No. 223732 JACOB T. VELTMAN, State Bar No. 247597 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant Google Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION GARY BLACK, et al., Plaintiffs, v. GOOGLE INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 10-02381 CW DEFENDANT GOOGLE INC.'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS' COMPLAINT Hearing Date: August 12, 2010 Hearing Time: 2:00 p.m. Courtroom: 2 (Hon. Claudia Wilken)

DEF. GOOGLE INC.'S REPLY ISO MOT. TO DISMISS CASE NO. C 10-02381 CW

Dockets.Justia.com

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DEF. GOOGLE INC.'S REPLY ISO MOT. TO DISMISS CASE NO. C 10-02381 CW

TABLE OF CONTENTS Page INTRODUCTION ...........................................................................................................1 ARGUMENT ..................................................................................................................2 A. Section 230(c) Bars Plaintiffs' Claims For Relief. ...................................2 1. Plaintiffs' Allegation That Google "Sponsored" Or "Endorsed" Third-Party Content Does Not Alter Google's Entitlement To Section 230(c) Immunity......................................3 Google Is Entitled to Section 230(c) Protection Regardless Of Plaintiffs' Allegations Of Notice. ..............................................5

2. B. C.

Plaintiffs' Complaint Fails To State A Claim Upon Which Relief Can Be Granted. .......................................................................................6 Plaintiffs' Complaint Should Be Dismissed With Prejudice. ..................7

CONCLUSION ...............................................................................................................8

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TABLE OF AUTHORITIES Page CASES Barrett v. Rosenthal, 51 Cal.Rptr.3d 55 (2006).............................................................5 Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).............................................................4 Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F. 3d 980 (10th Cir. 2000) ............................................................................................................. 4 Beyond Sys., Inc. v. Keynetics, Inc., 422 F. Supp. 2d 523 (D. Md. 2006)......................5 Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).................................................5 Carafano v. Metrosplash.com. Inc., 339 F. 3d 1119 (9th Cir. 2003).............................4 Doe v. MySpace, Inc., 528 F. 3d 413 (5th Cir. 2008) ................................................. 3, 5 Donato v. Moldow, 865 A.2d 711 (N.J. Super. A.D. 2005) ............................................ 5 Eckert v. Microsoft Corp., No. 06-11888, 2007 WL 496692 (E.D. Mich. Feb. 13, 2007).......................................................................................................5 Fair Housing Council of San Fernando Valley v. Roommates.Com, 521 F.3d 1157 (9th Cir. 2008) (en banc) .................................................................... 4 Gadda v. State Bar of Calif., 511 F.3d 933 (9th Cir. 2007) .......................................... 7 Gentry v. eBay, Inc., 99 Cal. App. 4th 816 (2002) ......................................................... 5 Global Royalties, Ltd. v. Xcentric Ventures, LLC, No. 07-956-PHX-FJM, 2007 WL 2949002 (D. Ariz. Oct. 10, 2007) ..................................................... 3, 5 Goddard v. Google, Inc., No. 08-cv-2738, 2008 WL 5245490 (N.D. Cal. Dec. 17, 2008).......................................................................................................5 Klausner v. Lucas Film Entertainment Co., Ltd., Case No. 09-03502 CW, 2010 WL 1038228 (N.D. Cal. March 19, 2010)...................................................8 Morrison v. American Online, Inc., 153 F. Supp. 2d 930 (N.D. Ind. 2001) .................. 6 Murawski v. Pataki, 514 F. Supp. 2d 577 (S.D.N.Y. 2007)...........................................5 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F. 3d 250 (4th Cir. 2009) ............................................................................................................. 4

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Putz v. Schwarzenegger, Case No. 10-00344 CW, 2010 WL 1838717 (N.D. Cal. May 5, 2010) ....................................................................................... 7 Schmier v. U.S. Court of Appeals, 279 F.3d 817 (9th Cir. 2002) .................................. 8 Universal Commc'ns Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007).............................................................................................................3, 4, 5 Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) ................................... 4, 5 STATUTES 47 U.S.C. § 230(c) ................................................................................................. passim RULES Fed. R. Civ. P. 12(b)(1) ........................................................................................... 1, 2, 7 Fed. R. Civ. P. 12(b)(6) ........................................................................................... 1, 2, 7

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REPLY MEMORANDUM INTRODUCTION Section 230(c) immunizes Google against plaintiffs' claims. Plaintiffs do not dispute that Google provides an interactive computer service. Nor do they dispute that the information at issue in this case comes from "another information content provider." Instead, they baldy assert that their claims do not seek to treat Google as the "publisher or speaker" of third-party content. They are mistaken. The

complaint clearly asserts that the basis for this lawsuit is a review written by an anonymous third party that allegedly can be found using Google's online service called Google Places. For that reason, all of plaintiffs' claims seek to hold Google responsible for third-party speech, and all are barred by Section 230(c). Even setting aside Section 230(c), Google's motion to dismiss demonstrates that plaintiffs have not stated a claim for relief. And plaintiffs' response does not even attempt to meaningfully defend their claims. The Court should dismiss the complaint with prejudice for the separate and independent reason that plaintiffs have failed to state a claim upon which relief can be granted under Rule 12(b)(1) and Rule 12(b)(6). BACKGROUND On July 2, 2010, Google filed a motion to dismiss plaintiffs' complaint. 1

Google secured from plaintiffs an extension from June 22, 2010 to July 2, 2010 to answer, move, plead or otherwise respond to the complaint. (Docket No. 14). Plaintiffs now claim that the parties' agreement only contemplated an answer by Google. (Docket No. 16 at 1-2). That is untrue. See Decl. of Bart E. Volkmer In Supp. of Def.'s Reply Mem. ("Volkmer Decl.") ¶¶ 2-7. A confirming letter from counsel and the agreed-upon form of the stipulation itself accurately reflect the parties' agreement. Id. If plaintiffs had conditioned granting an extension on Google giving up its right to move to dismiss, Google would have sought an extension from the Court or would have withdrawn its extension request. But Google would not have agreed, under any circumstances, to an extension that limited its substantive rights when responding to the complaint.
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On that same day, plaintiffs filed a declaration from Gary Black. (Docket No. 13). The declaration sets forth Black's belief that he was being targeted by third parties in retaliation for his online writings: (1) two short stories that were "intended to be for children and funny"; and (2) a letter that Black wrote to all United States Senators based on his "fear that [he] knew something about the current economic crisis and wanted to make sure they knew as well." Id. ¶ 10. On July 8, 2010, plaintiffs filed an opposition to Google's motion to dismiss along with a cross-motion for judgment on the pleadings. (Docket No. 15). On July 19, 2010, plaintiffs filed a document entitled "Plaintiff's Brief." (Docket No. 16). Google opposed plaintiffs' motion for judgment on the pleadings on July 22, 2010. (Docket No. 17). Plaintiffs filed a reply in support of their motion for judgment on the pleadings on July 28, 2010. (Docket No. 19). ARGUMENT A. Section 230(c) Bars Plaintiffs' Claims For Relief.

A defendant is immune from suit under Section 230(c) if: (1) it qualifies as a "provider or user of an interactive computer service"; (2) the information at issue comes from "another information content provider"; and (3) the claims asserted seek to treat the defendant as a "publisher or speaker" of the information. 47 U.S.C. § 230(c)(1). Plaintiffs do not dispute that Google is a provider of "an interactive Nor do plaintiffs contend that Google played any role in

computer service."

authoring the review of their business that is referenced in the complaint. See Compl. ¶¶ 3, 19. The only remaining issue is whether plaintiffs' claims seek to treat Google as the "publisher or speaker" of third-party content. They plainly do.

Accordingly, the Court should dismiss plaintiffs' complaint with prejudice. Plaintiffs themselves allege that their complaint "arises from an online comment posted upon the Google website." Compl. ¶ 1. And to the extent they can be understood, plaintiffs' claims for relief are premised on that online comment or the fact that it could be found using Google Places. See, e.g., Compl. ¶¶ 3, 18, 19,
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20, 21, 24, 33, 34, 39, 44, 47, 50, 52, 54, 58. Indeed, if third-party material is disregarded when analyzing the complaint, there are no allegations that Google did anything except run a service that allows users to post business reviews online. That is not tortious by any measure. To try to avoid Section 230(c) immunity, plaintiffs appear to make two arguments: (1) they claim that Google should be liable because it "endorsed, sponsored, or allowed" third-party speech; and (2) they insist that upon receiving notice that third-party content is allegedly defamatory, Google should evaluate the complaint and remove offending material. These makeweight arguments find no support in the text of Section 230(c), have been uniformly rejected by other courts, and would undermine the purpose of the immunity if accepted. 1. Plaintiffs' Allegation That Google "Sponsored" Or "Endorsed" Third-Party Content Does Not Alter Google's Entitlement To Section 230(c) Immunity.

Plaintiffs argue that Section 230(c) "does not provide protection for on line services that actually sponsor-endorse" third-party Internet posts. (Docket No. 16 at 7-8 (emphasis removed)). Plaintiffs contend, without any authority, that by

providing a forum that allows users to post reviews about businesses, Google "sponsors" third-party content posted to Google Places and therefore falls outside of the protections of Section 230(c). That argument founders on the statute itself. An online service is immune from suit if the claims for relief seek to treat the defendant as the "publisher or speaker" of third-party content. 47 U.S.C. § 230(c)(1). That is precisely what a claim seeking to hold Google liable as an "endorser" or "sponsor" of third-party speech does. See Global Royalties, Ltd. v. Xcentric Ventures, LLC, No. 07-956-PHX-FJM, 2007 WL 2949002, at *3 (D. Ariz. Oct. 10, 2007) (rejecting argument that online service fell outside of Section 230(c) because it "adopted" third-party statements). And it does not matter that the plaintiff might choose to affix labels other than "publisher" or "speaker" when describing the defendant's connection with third-party material. See Universal Commc'ns Sys., Inc. v. Lycos,
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Inc., 478 F.3d 413, 418 (1st Cir. 2007) ("Congress intended that, within broad limits, message board operators would not be held responsible for the postings made by others on that board. No amount of artful pleading can avoid that result."); Doe v. MySpace, Inc., 528 F. 3d 413, 419 (5th Cir. 2008) (claims for relief sought to treat an online service as the "publisher or speaker" of third-party information even where plaintiffs characterized their claims as attacking the defendant's "failure to implement basic safety measures to protect minors"); Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F. 3d 980, 986 (10th Cir. 2000) ("Imposing liability on Defendant for the allegedly inaccurate stock information provided by [a third party] would `treat' Defendant as the `publisher or speaker,' a result § 230 specifically proscribes."). Plaintiffs' attempt to cast Google as a "sponsor" or "endorser" of third-party content does not affect Google's entitlement to Section 230(c) immunity. A contrary result would render Section 230(c) meaningless because a plaintiff would always contend that by providing a forum for third-party content, or by failing to remove such content, a defendant was sponsoring or endorsing it. Congress did not pass a statute with such an enormous loophole and there is no basis to read one in. See, e.g., Fair Housing Council of San Fernando Valley v. Roommates.Com, 521 F.3d 1157, 1175 (9th Cir. 2008) (en banc) ("section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles."). Indeed, courts routinely accord the immunity wide berth given its purpose to promote the development of online services and foster free speech online. See, e.g., Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F. 3d 250, 254 (4th Cir. 2009); Batzel v. Smith, 333 F.3d 1018, 1027-28 (9th Cir. 2003); Carafano v. Metrosplash.com. Inc., 339 F. 3d 1119, 1122-23 (9th Cir. 2003); Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).

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2.

Google Is Entitled to Section 230(c) Protection Regardless Of Plaintiffs' Allegations Of Notice.

Plaintiffs also argue, again without authority, that Google is not entitled to Section 230(c) protection because plaintiffs provided Google with notice of the allegedly offending material and that Google failed to respond. In plaintiffs' view, when someone complains about the content of third-party speech, an online service must "enter the arena of dispute resolution" and investigate the allegation on pain of losing Section 230(c) immunity. (Docket No. 16 at 8 (emphasis removed)). They could not be more wrong. The law is settled that Section 230(c)'s broad protections are not vitiated when a website operator is notified of allegedly offending content and fails to remove it. See Doe, 528 F.3d at 419 ("the CDA protects Web-based service providers from liability even after the provider is notified of objectionable content on its site"); Universal, 478 F.3d at 420 ("It is, by now, well established that notice of the unlawful nature of the information provided is not enough to make it the service provider's own speech.") (citation omitted); Zeran, 129 F.3d at 333 ("Liability upon notice would defeat the dual purposes advanced by § 230 of the CDA."); Barrett v. Rosenthal, 51 Cal.Rptr.3d 55, 73 (2006) ("the Zeran court accurately diagnosed the problems that would attend notice-based liability for service providers"). 2 Therefore, "even if a service provider knows that third parties are using [its] tools to create illegal content, the service provider's failure to intervene is immunized." Goddard v. Google, Inc., No. 08-cv-2738, 2008 WL 5245490, at *3 (N.D. Cal. Dec. 17, 2008). See also Murawski v. Pataki, 514 F. Supp. 2d 577, 591 (S.D.N.Y. 2007); Eckert v. Microsoft Corp., No. 06-11888, 2007 WL 496692, at *3 (E.D. Mich. Feb. 13, 2007); Global Royalties, 2007 WL 2949002, at *3; Beyond Sys., Inc. v. Keynetics, Inc., 422 F. Supp. 2d 523, 536 (D. Md. 2006); Donato v. Moldow, 865 A.2d 711, 726 (N.J. Super. A.D. 2005); Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 835 (2002); Blumenthal v. Drudge, 992 F. Supp. 44, 52 (D.D.C. 1998).
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These decisions are well reasoned and should be followed. The text of Section 230(c) itself does not provide any basis for notice-based liability. And the purpose of the statute would be frustrated if service providers were required to mediate disputes between online commentators and complaining parties. Plaintiffs cannot evade the mandates of Section 230(c) by claiming that Google had notice of the third-party review at issue and failed to act. B. Plaintiffs' Complaint Fails To State A Claim Upon Which Relief Can Be Granted.

Google's motion to dismiss explains why plaintiffs' complaint fails to state a claim upon which relief can be granted even without regard to Section 230(c) immunity. (Docket No. 10 at 9-13). Plaintiffs' opposition submissions do nothing to rehabilitate their claims. Breach of Authority/FTC Act Claims: Google's motion to dismiss noted that plaintiffs lack standing to bring FTC Act claims and to assert federal criminal laws. Plaintiffs respond by claiming that they "should have access to the same U.S.C. as being used by the Defendant." (Docket No. 16 at 10). While unclear, plaintiffs apparently contend that they should be allowed to assert any federal law because Google is relying on a defense contained in the United States Code. That is frivolous. The well developed rules governing the availability of a private right of action do not turn on the source of the defendant's defenses. Breach of Contract: The sum total of plaintiffs' breach of contract allegations is the unadorned legal conclusion that a contract exists between them and Google. Plaintiffs do not attach the actual contract, point to the provisions of the contract that Google allegedly breached or describe the manner in which the contract was allegedly breached. Instead, plaintiffs reference a provision of Google's Terms of Use in which Google's users agree that they will not use Google's services for unlawful purposes. Compl. ¶ 44. No matter how liberally they are construed, those allegations do not state a breach of contract claim against Google. See, e.g.,
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Morrison v. American Online, Inc., 153 F. Supp. 2d 930, 934 (N.D. Ind. 2001) (rejecting plaintiff's argument that it was a third-party beneficiary of a contract between AOL and one of its members). Negligence: Google demonstrated in its motion to dismiss that plaintiffs failed to state a claim for negligence because there is no relationship between Google and the plaintiffs that could have triggered a duty of care. Plaintiffs do not respond to Google's argument but merely restate the allegations from their complaint. No amount of repetition can change the fact that Google does not owe a duty to plaintiffs to ensure that commentary posted on the Internet by anonymous third parties is accurate. The negligence claim should be dismissed. Misrepresentation and Intentional Infliction Of Emotional Distress: Plaintiffs do not even try to explain how their complaint could be read to support a claim for fraudulent misrepresentation or intentional infliction of emotional distress. Accordingly, these claims should also be dismissed. In addition to being barred by Section 230(c), plaintiffs' complaint fails to state a claim for relief under Rule 12(b)(1) and Rule 12(b)(6). C. Plaintiffs' Complaint Should Be Dismissed With Prejudice.

Google respectfully submits that plaintiffs' complaint should be dismissed with prejudice because any amendment would be futile. The only connection that Google is alleged to have with plaintiffs is that a third-party review of their business can be found using Google Places. Under these circumstances, plaintiffs' allegations will necessarily fail under Section 230(c) no matter how they are pled. Indeed, plaintiffs have filed an extra brief and a procedurally improper declaration without articulating a theory of liability that survives Section 230(c). (Docket Nos. 13, 16). Dismissal with prejudice is warranted. See Gadda v. State Bar of Calif., 511 F.3d 933, 939 (9th Cir. 2007) (plaintiff "has not suggested any possible way that he could cure his complaint to survive dismissal upon amendment, nor is one apparent. Because allowing amendment would be futile, we hold that the district
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court properly dismissed [plaintiff's] claims with prejudice and without leave to amend."); Putz v. Schwarzenegger, Case No. 10-00344 CW, 2010 WL 1838717, *11 (N.D. Cal. May 5, 2010) (dismissing claim for relief with prejudice where amendment would be futile); Klausner v. Lucas Film Entertainment Co., Ltd., Case No. 09-03502 CW, 2010 WL 1038228, at *4 (N.D. Cal. March 19, 2010) (same). That result is especially appropriate given that plaintiffs have withdrawn a request to amend their complaint in the event that Google's motion to dismiss is granted. (Docket No. 19 at 4; Docket No. 15 at 6). Because plaintiffs have elected to stand on a deficient complaint, a final order dismissing their case with prejudice should be entered. CONCLUSION For the foregoing reasons, Google respectfully requests that the Court dismiss plaintiffs' complaint with prejudice. 3

Respectfully submitted, Dated: July 29, 2010 WILSON SONSINI GOODRICH & ROSATI Professional Corporation By: /s/ David H. Kramer David H. Kramer

Attorneys for Defendant Google Inc. In their papers, plaintiffs have requested "statutory damages" in the amount of $575,000 and punitive damages in the amount of $20,000,000. (Docket No. 15 at 6; Docket No. 16 at 15; Docket No. 19 at 4). Those requests are specious and should be ignored. On Google's motion to dismiss, the Court accepts as true the factual allegations stated in the complaint. See Schmier v. U.S. Court of Appeals, 279 F.3d 817, 820 (9th Cir. 2002). That fiction, of course, does not apply to any other aspect of the case. In the event that this case moves beyond the pleadings stage, Google will challenge the factual allegations contained in the complaint (by answer and with evidence) as well as plaintiffs' legal theories and damages assertions. There is no basis given the record and procedural posture for plaintiffs' request for monetary relief. It should be disregarded.
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