Stayart v. Yahoo! Inc et al

Filing 41

ORDER signed by Chief Judge Rudolph T Randa on 8/28/09 granting 12 Yahoo! and Overture's Motion to Dismiss; granting 14 Various, Inc.'s Motion to Dismiss; denying 22 , 24 Stayart's Motions for Sanctions. Stayart's request to replead is denied and this matter is dismissed. (cc: all counsel) (Randa, Rudolph)(dm)

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF WISCONSIN

B E V E R L Y STAYART, P l a in tif f , C a s e No. 09-C-116 -vsY A H O O ! INC., OVERTURE SERVICES, INC., d /b /a ALTA VISTA and VARIOUS, INC., d /b /a FRIENDFINDER.COM, Defendants.

D E C IS IO N AND ORDER

T h e plaintiff, Beverly Stayart ("Stayart"), conducted search engine queries with her o w n name as a search term, and she didn't like the results. Her queries produced links to p o rn o g ra p h ic websites, online pharmacies promoting sexual dysfunction drugs, and an adulto rien ted online dating service. Stayart alleges that the defendants, Yahoo! Inc. ("Yahoo!"), O v e rtu re Services, Inc. ("Overture"), and Various, Inc. ("Various"), knowingly and in te n tio n a lly used her name on the internet without authorization. She brings three claims a g a in s t each of the three defendants for a total of nine claims: (1) False Endorsement under the Federal Lanham Act; (2) Violation of Statutory Right of Privacy (Wis. Stats. § 995.50); a n d (3) Violation of Common Law Right of Privacy. D e f en d a n ts moved to dismiss, and in response, Stayart moved for sanctions. For the re a so n s that follow, defendants' motions to dismiss are granted. Stayart's request to replead

is denied, but the Court relinquishes jurisdiction over her supplemental state law claims. In a d d itio n , Stayart's motions for sanctions are denied. BACKGROUND1 Y a h o o ! is a Delaware corporation with its principal place of business in California. Y a h o o ! provides a commercial search engine at its main interactive website, w w w .ya h o o .co m . This search engine is the second-largest search engine on the internet. B e f o re it was merged into Yahoo!, Overture 2 was formerly a Delaware corporation with its p rin c ip a l place of business in California. Overture provides a commercial search engine at its main interactive website, www.altavista.com. V a rio u s is a California corporation with its principal place of business in California. V a rio u s owns approximately 25 "web communities" where "over 100 million registered m e m b e r s " meet each other through computer personals. These include non-sexual networks, su c h as www.friendfinder.com and www.seniorfriendfinder.com. Through its

A d u ltF r ie n d F in d e r service (www.adultfriendfinder.com), Various markets and sells on-line a d u lt-o rie n te d social networking services to individuals, including what it advertises as "the w o rld 's largest adult social personals with over 20,000,000 members." S tayart lives in Elkhorn, Wisconsin, Walworth County. She holds a Bachelor's D e g re e from the University of Iowa and an M.B.A. from the University of Chicago. Prior

The following factual background is taken from Stayart's complaint, which the Court accepts as true for p u r p o s e s of this motion. During the relevant time period, Overture was operated by Yahoo!, and they are no longer separate entities. T h e claims against Yahoo! and Overture are identical, and the Court treats them as such.
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to May, 2000, Stayart lived in Chicago for many years. Stayart was previously employed by se v e ra l major financial institutions in Chicago, attaining the position of Vice President. S ta ya rt is frequently involved in animal protection programs throughout the world, a s well as genealogy research throughout the world. Stayart actively participated in recent c a m p a ig n s to save the wild horse population in the United States; to save the baby seal p o p u la tio n in eastern Canada; and to prohibit the aerial shooting of wolves in the United S ta te s . S ta ya rt regularly uses the Internet in support of her animal protection activities and g e n e alo g y research. For example, Stayart contributes to an online discussion forum for research and genealogical data concerning the Siouan people (Saponi) at

w w w .s a p o n ito w n .c o m . This third-party website contains Stayart's photo, address and other p e rs o n a l information. Stayart's periodic, scholarly posts on this third-party website have g e n e ra te d almost 17,000 hits during the past three years. In addition, two poems written by B e v Stayart appear on two Danish websites supporting the preservation of the baby seal p o p u la tio n in eastern Canada. S ta ya rt is a "sophisticated, well-educated, and highly intelligent professional woman, w ith important and valuable friends and business contacts throughout the world." (C o m p la in t, D. 1, ¶ 18). On information and belief, Stayart is the only Beverly Stayart and B e v Stayart on the internet. She uses both names. Stayart in no way has ever engaged in a p ro m is c u o u s lifestyle, or other overt sexual activities, which she and a large portion of her c o m m u n ity and social circle consider perverse and abhorrent. Plaintiff alleges that the name

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" B e v Stayart" has commercial value because of her humanitarian endeavors, positive and w h o le s o m e image, and the popularity of her scholarly posts on the Internet. Plaintiff has n e v e r given the defendants or any third party any permission, authority, or license to use or s e ll the right to use the name "Bev Stayart" for the promotion of any goods or services on the In te rn e t, or in any other media, either directly or indirectly. O n various occasions between September and December of 2008, Stayart performed w e b searches on the internet using "Bev Stayart" as a search term on various commercial s e a r c h engines, including www.yahoo.com and www.altavista.com. Stayart alleges that Y a h o o ! and Overture knowingly used plaintiff's name "Bev Stayart" on a false snippet on th e ir search engine results by (1) repeatedly linking Plaintiff to the advertising of Cialis by a n online pharmacy; (2) repeatedly linking Plaintiff to six separate websites playing p o rn o g ra p h ic videos containing computer spy ware; and (3) repeatedly linking Plaintiff to a website captioned "Free Streaming Porn ­ HOTTEST DAILY PORN" displaying 27 hardc o re pornographic photos. For example, Stayart alleges that she typed "Bev Stayart" into Y a h o o !'s search engine on September 9, 2008, and received the following result: P m kb Loading Cialis ­ Online Pharmacy P m 10kb loading cialis January th, at: pm hi friends I met you in the tim horton s on bloor st a few Sundays ago I . . . on F eb rua ry b e v stayart on march th . . . c h ito s a n -a s -a -p h a rm a c e u tic a l- e x c ip ie n t.p ills -n -h e a lth .c n /... (C o m p la in t, ¶ 60). Stayart alleges that Yahoo! and Overture knowingly connected and co n tin u es to connect her name (Bev Stayart) with the sexual dysfunction drugs Cialis, Viagra an d Levitra on its search engine results for her. -4-

S ta ya rt notified Yahoo! by emails on September 9-10, 2008 that its search engine was g en era tin g illegitimate search results linking her to a sexual dysfunction drug, hard-core p o rn o g ra p h ic websites, and an online pharmacy promoting Cialis. Stayart also retained a law yer who requested that the illegitimate search results be removed from Yahoo!'s w e b sites. Yahoo! responded as follows: "We do not aim to judge web content for

a p p ro p ria te n e s s or censor materials that we find offensive or inappropriate. Instead, we p re se n t information as it is reflected on the Web, allowing you to draw your own informed c o n c lu s io n s about what you see." Complaint, ¶ 105. S ta ya rt also alleges that Various used the name "Bev Stayart" on a website advertising its adult, online sexually-oriented dating service AdultFriendFinder.com without permission o r authorization. On December 5, 2008, Stayart typed "Bev Stayart" into www.altavista.com a n d received the following result: s to re place.007webs.com/freec6.html h ttp ://yo rk ie-p u p p ie s.d o o rw ay.orge.pl/dinosaur-m ain-title s-m p 3 . h tm l . . . http://jewellery-makin-doorway.orge.pl/bevs t a y a r t .h t m l b e v stayart . . . storeplace.007.webs.com/free.c6.html M o re pages from store place.007webs.com C o m p la in t, ¶ 114. Stayart clicked on the http://jewellery-makin-doorway.orge.pl/bev-

s ta ya rt.h t m l link and an "Under Construction" website appeared titled "Meet A d u ltF r ie n d F in d e r members near Janesville [Wisconsin] ­ Over 20 Million Members" and c o n tain in g five graphic images of fully or partially nude women who are exhibiting their b re a sts and buttocks in a sexually suggestive manner. These photos are accompanied by the a g e , nickname and city of residence of the women. The URL http://jewellery-makin-5-

d o o rw a y.o rg e .p l/b e v -s ta ya rt.h tm l appears at the bottom of the page. See Complaint, Exhibit LL. A N A L Y SIS W h e n deciding a motion to dismiss for failure to state a claim, the Court must accept as true all well-pleaded facts and draw all permissible inferences in the plaintiff's favor. W h i l e a complaint "does not need detailed factual allegations, a plaintiff's obligation to p r o v i d e the `grounds' of his `entitlement to relief' requires more than labels and conclusions, a n d a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v . Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right t o relief above the speculative level, on the assumption that all the allegations in the c o m p la in t are true (even if doubtful in fact)." Id. T h e Court need not accept as true the "threadbare recitals of a cause of action's e le m e n ts , supported by mere conclusory statements." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1 9 4 9 (2009). "A claim has facial plausibility when the pleaded factual content allows the c o u rt to draw the reasonable inference that the defendant is liable for the misconduct a lle g e d ." Id. The plausibility standard is not akin to a "probability requirement," but it asks f o r more than a sheer possibility that a defendant has acted unlawfully. Id. Notice pleading " m a r k s a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing m o re than conclusions." Id. at 1950.

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A party can also "plead itself out of court by pleading facts that establish an im p e n e tra b le defense to its claims. A plaintiff `pleads himself out of court when it would be n e c es s a ry to contradict the complaint in order to prevail on the merits.' If the plaintiff v o lu n tar ily provides unnecessary facts in her complaint, the defendant may use those facts to demonstrate that she is not entitled to relief." Tamayo v. Blagojevich, 526 F.3d 1074, 1 0 8 6 (7th Cir. 2008). The Court may consider the exhibits attached to Stayart's complaint in determining whether she states a valid claim for relief. See Centers v. Centennial Mortg., In c ., 398 F.3d 930, 933 (7th Cir. 2005); Fed. R. Civ. P. 10(c). I. L a n h a m Act ­ False Endorsement S e c tio n 43(a)3 of the Lanham Act provides two general theories of liability: (1) false re p re se n ta tio n s regarding the origin, endorsement, or association of goods or services th ro u g h the wrongful use of another's distinctive mark, name, trade dress, or other device (" f als e endorsement" or "false association"); and (2) false representations in advertising

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The full text of Section 43(a) (15 U.S.C. § 1125(a)) provides as follows: ( 1 ) Any person who, on or in connection with any goods or services, or any container fo r goods, uses in commerce any word, term, name, symbol, or device, or any c o m b in a tio n thereof, or any false designation of origin, false or misleading description o f fact, or false or misleading representation of fact, which -( A ) is likely to cause confusion, or to cause mistake, or to deceive a s to the affiliation, connection, or association of such person with a n o th e r person, or as to the origin, sponsorship, or approval of his or h e r goods, services, or commercial activities by another person, or ( B ) in commercial advertising or promotion, misrepresents the n a tu r e , characteristics, qualities, or geographic origin of his or her o r another person's goods, services, or commercial activities, s h a l l be held liable in a civil action by any person who believes that he or she is or is l i k e l y to be damaged by such act.

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c o n c e rn in g the quality of services or goods ("false advertising"). See L.S. Heath & Son, Inc. v . AT & T Info. Sys., Inc., 9 F.3d 561, 575 (7th Cir. 1993). Stayart's Lanham Act claim is a f a ls e endorsement claim. F a ls e endorsement occurs when a person's identity is connected with a product or se rv ice in such a way that consumers are likely to be misled about that person's sponsorship o r approval of the product or service. See ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 9252 6 (6th Cir. 2003). "A false endorsement claim based on the unauthorized use of a c e le b rity's identity . . . alleges the misuse of a trademark, . . . such as visual likeness, vocal im it a t io n , or other uniquely distinguishing characteristic, which is likely to confuse c o n su m e rs as to the plaintiff's sponsorship or approval of the product." Waits v. Frito-Lay, In c ., 978 F.2d 1093, 1110 (9th Cir. 1992). The "mark" at issue is the plaintiff's identity. Id.; L a n d h a m v. Lewis Galoob Toys, Inc., 227 F.3d 619, 626 (6th Cir. 2000). While many of th e se cases arise in the context of a popular celebrity, some cases hold that popularity or c e le b rity status is not a necessary prerequisite for a successful false endorsement claim under th e Lanham Act. See, e.g., Hauf v. Life Extension Found., 547 F. Supp. 2d 771, 777 (W.D. M ich . 2008); Ji v. Bose Corp., 538 F. Supp. 2d 349, 351 (D. Mass. 2008); Doe v. F r ie n d fin d e r Network, Inc., 540 F. Supp. 2d 288, 306 (D.N.H. 2008). A. P r u d en tia l Standing

T h e plain language of the Act provides standing to "any person who believes that he o r she is or is likely to be damaged by such act." 15 U.S.C. § 1125(a). While this language i m p lie s a broad reach, the focus of the Lanham Act is on "anti-competitive conduct in a

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c o m m e r c ia l context. Conferring standing to the full extent implied by the text of § 43(a) w o u ld give standing to parties, such as consumers, having no competitive or commercial in te re sts affected by the conduct at issue." Conte Bros. Auto., Inc. v. Quaker State-Slick 50, In c ., 165 F.3d 221, 229 (3d Cir. 1998) (emphasis added); Proctor & Gamble Co. v. Amway C o r p ., 242 F.3d 539, 561 (5th Cir. 2001). In order to satisfy the prudential standing r e q u ir e m e n t for a false endorsement claim under the Lanham Act, Stayart must "at least a lle g e an existing intent to commercialize an interest in identity." Condit v. Star Editorial, In c ., 259 F. Supp. 2d 1046, 1052 (E.D. Cal. 2003); Hutchinson v. Pfeil, 211 F.3d 515, 521 (1 0 th Cir. 2000) ("mere potential of commercial interest . . . is insufficient to confer standing f o r [a] false association claim"); Stanfield v. Osborne Indus., Inc., 52 F.3d 867, 873 (10th C ir . 1995) ("Although plaintiff asserts that he has plans to compete . . . and would like to use h is name in a trademark, the mere potential of commercial interest . . . is insufficient to co n fe r standing"). In Dovenmuehle v. Gilldorn Mortgage Midwest Corp., 871 F.2d 697 (7th Cir. 1989), m e m b e r s of the Dovenmuehle family brought suit after selling their family business, alleging th a t defendants' use of the trade name "Dovenmuehle, Inc." violated § 43(a) of the Lanham A c t. The court recognized that the class of parties with standing under § 43(a) is "quite b ro a d " and that all a commercial party needs to bring suit under the Act is a "`reasonable in te re st to be protected' against activities that violate the Act." Id. at 700. However, the p la in tif f s could not "premise their claim upon any contention that they have been damaged o r are likely to be damaged in any commercial activity as a result of defendants' use of the

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tra d e name `Dovenmuehle, Inc.' None of the plaintiffs are engaged in competition, even in d ire c tly, with the defendants. Nor do they claim any present intention to operate a c o m m e rc ia l activity under the name `Dovenmuehle.'" Id. S im ila rly, Stayart is not engaged in the commercial marketing of her identity, and she d o e s not allege an intent to commercialize. Stayart alleges that her name has commercial v a lu e , but it is clear that Stayart's complaint arises from the distasteful association of her n a m e with pornographic images, advertisements for sexual dysfunction drugs, and a se x u a lly-o rie n ted dating service. Plaintiff alleges that she "in no way has ever engaged in a promiscuous lifestyle, or other overt sexual activities, which she and a large portion of her c o m m u n ity and social circle consider perverse and abhorrent," Complaint, ¶ 20, but the " e m o tio n a l desire to prevent others from using" her name "does not create Lanham Act s ta n d in g ." Dovenmuehle at 701. This emotional, non-commercial concern is underscored b y Stayart's correspondence with Yahoo! that is attached to her complaint. See Compl. at E x . CC ("my privacy and reputation have been seriously violated and defamed"); Ex. DD, E E ("This material is both pornographic and demeaning to her. The site is using her name w ith o u t her permission to defame and denigrate her good name"); Ex. Z ("I believe that Y a h o o ! has invaded my privacy by the publishing, and/or facilitating the publishing, of false a n d defamatory pornographic photos purporting to be me"). Stayart's pleading is a

tra n sp a re n t and artful attempt to bring her claim under the umbrella of the Lanham Act. " C o n g re ss has not evinced an intent to create a federal `false light' tort claim for

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m is a p p ro p ria tio n of image or identity, absent commercialization." Condit, 259 F. Supp. 2d a t 1054. S tayart argues that Dovenmuehle (and other cases cited therein) are inapposite because th e y interpreted the Lanham Act as it was written prior to the Trademark Law Revision Act o f 1988. See, e.g., Colligan v. Activities Club of New York, Ltd., 442 F.2d 686, 692 (2d Cir. 1 9 7 1 ); Smith v. Montoro, 648 F.2d 602, 608 (9th Cir. 1981). Stayart is mistaken. "Congress in te n d e d that the section 43(a) amendments largely codify pre-1988 case law." ALPO P e tF o o d s v. Ralston Purina Co., 913 F.2d 958, 964 n.6 (D.C. Cir. 1990); see also BristolM e y e r s Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1038 n.1 (2d Cir. 1992) (" p re c e d e n ts predating the new language remain in force"); Condit at 1050 (amendments " sh o u ld not be regarded as either limiting or extending applicable decisional law" as it p e rta in s to standing issue)(citing Senate Report No. 100-515, Section 35). Case law

in te rp re tin g the pre-Amendment version of the Lanham Act is still relevant in determining w h e th e r a party has standing. S ta ya rt relies on Doe v. Friendfinder, which held that an anonymous, non-celebrity p la in tif f could state a Lanham Act false endorsement claim based on a false profile created o n an online dating website.4 540 F. Supp. 2d at 306. The Lanham Act claim in Doe su rv iv e d a Rule 12(b)(6) motion, but the court did not address "prudential standing" in its d e c is io n . Prudential standing is not "jurisdictional" in the same sense as Article III standing, s o the lack of a prudential standing discussion in Doe is not surprising. "[A] court may raise

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Various was one of the defendants in Doe.

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a n unpreserved prudential-standing question on its own, but unlike questions of constitutional s ta n d in g , it is not obliged to do so." Rawoof v. Texor Petroleum Co., Inc., 521 F.3d 750, 757 (7 th Cir. 2008). The ruling in Doe does not undermine the Court's holding that Stayart lacks s ta n d in g to pursue a Lanham Act claim. T h e r e f o r e , in the context of Stayart's detailed, prolix complaint, the Court must c o n c lu d e that the absence of any factual allegations pertaining to the commercialization of h e r identity means that she cannot meet this basic requirement for obtaining relief under the L a n h a m Act. Stayart's allegations fail to raise her right to relief above the speculative level. B. L ik e lih o o d of Confusion

T h e key issue in a false endorsement case is whether "defendant's use of the mark to iden tify its goods or services is likely to create confusion concerning the plaintiff's s p o n s o rs h ip or approval of those goods or services." Facenda v. NFL Films, Inc., 542 F.3d 1 0 0 7 , 1014 (3d Cir. 2008). Plaintiff must be able to show that "the public believe[s] that `the m a rk 's owner sponsored or otherwise approved of the use of the trademark.'" Landham v. L e w is Galoob Toys, Inc., 227 F.3d 619, 626 (6th Cir. 2000). Even if Stayart is engaged in c o m m e rc ia l activity with respect to her identity, a commonsense reading of the complaint d e m o n s tra te s that there could be no likelihood of confusion. C o u rts analyze a variety of factors to determine whether the use of a mark creates the lik e lih o o d of confusion, including the level of plaintiff's recognition among the segment of th e society for whom defendant's product is intended, the relatedness of plaintiff's fame or s u cc ess to defendant's product, and defendant's intent in selecting the plaintiff. See

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K o u r n ik o v a v. Gen. Media Commc'n, Inc., 278 F. Supp. 2d 1111, 1120-21 (C.D. Cal. 2 0 0 3 )(c itin g Downing v. Abercrombie & Fitch, 265 F.3d 994, 1007-08 (9th Cir. 2001) and A M F , Inc. v. Skeelcraft Boats, 599 F.2d 341 (9th Cir. 1979)); Promatek Indus., Ltd. v. E q u itr a c Corp., 300 F.3d 808, 812 (7th Cir. 2002). Stayart cannot satisfy this requirement a s a matter of law because her complaint explicitly disavows any association with p o rn o g ra p h ic materials, sexual dysfunction drugs, or sexually-oriented dating services (i.e., V a rio u s ' website AdultFriendFinder.com). As noted above, Stayart alleges that "in no way h a s [she] ever engaged in a promiscuous lifestyle, or other overt sexual activities, which she a n d a large portion of her community and social circle consider perverse and abhorrent." C o m p l ain t, ¶ 20. This allegation contravenes the likelihood of confusion, and Stayart p le a d ed herself out of court on her Lanham Act claim. No one who accessed these links c o u ld reasonably conclude that Bev Stayart endorsed the products at issue. M o re specifically, Stayart argues that Various can be held liable under the doctrine o f initial interest confusion. "Initial interest confusion, which is actionable under the L a n h a m Act, occurs when a customer is lured to a product by the similarity of the mark, even if the customer realizes the true source of the goods before the sale is consummated." P r o m a te k , 300 F.3d at 812. It is a "bait and switch" tactic that permits a competitor to lure co n su m ers away from a service provider by passing off services as those of the provider, n o tw ith s ta n d in g that the confusion is dispelled by the time of sale. See Vail Assoc., Inc. v. V e n d -T e l-C o ., Ltd., 516 F.3d 853, 872 (10th Cir. 2008).

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S ta ya rt appears to be arguing that a person's initial interest in Bev Stayart leads them to click on the http://jewellery-makin-doorway.orge.pl/bev-stayart.html URL, which then le a d s them to the "Under Construction" site with the AdultFriendFinder banner ad. " [ A ]c tio n a b le initial interest confusion on the Internet is determined, in large part, by the re la te d n e s s of the goods offered and the level of care exercised by the consumer." In ter ste lla r Starship Serv., Ltd. v. Epix, 304 F.3d 936, 945 (9th Cir. 2002). The Court's prior d is c u ss io n still rings true. Stayart's identity is completely unrelated to the services offered b y the AdultFriendFinder site. "[I]n the absence of these factors [i.e., product relatedness a n d level of care], some initial confusion will not likely facilitate free riding on the goodwill o f another mark, or otherwise harm the use claiming infringement. Where confusion has little or no meaningful effect in the marketplace, it is of little or no consequence" in e s ta b lis h in g initial interest confusion. Checkpoint Sys., Inc. v. Check Point Software Tech., I n c ., 269 F.3d 270, 297 (3d Cir. 2001). The type of person looking for information about B e v Stayart would not be fooled into using an online adult-oriented dating website. II. I m m u n ity under the Communications Decency Act ("CDA")5 In 1996, Congress passed the Communications Decency Act ("CDA"), 47 U.S.C. § 2 3 0 . The CDA was a congressional attempt to "remove disincentives for the development a n d utilization of blocking and filtering technologies that empower parents to restrict their c h ild re n 's access to objectionable or inappropriate online material." § 230(b)(4). At the

To the extent that the defendants raise an immunity defense, their motions are properly brought as motions for j u d g m e n t on the pleadings. See Chicago Lawyer's Comm. v. Craigslist, Inc., 519 F.3d 666, 672 (7th Cir. 2008).

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s a m e time, Congress sought to "promote the continued development of the Internet and other interac tiv e computer services and other interactive media." § 230(b)(1). A c c o rd in g ly, the CDA provides that no "provider or user of an interactive computer s e rv ic e shall be treated as the publisher or speaker of any information provided by another in fo r m a tio n content provider." § 230(c)(1) (emphases added). The terms "interactive c o m p u te r service" and "information content provider" have specific statutory definitions. A n interactive computer service (an "ICS") "means any information service, system, or a c ce ss software provider that provides or enables computer access by multiple users to a c o m p u te r server, including specifically a service or system that provides access to the In te rn e t and such systems operated or services offered by libraries or educations institutions." § 230(f)(2). An information content provider "means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Intern et or any other interactive computer service." § 230(f)(3). C o n s is te n t with the Congressional policy in favor of the expansive application of C D A immunity, the definition of interactive computer service is construed broadly, while the d e f in itio n of information content provider is construed narrowly. See Carafano v.

M e tr o s p la s h .c o m , Inc., 339 F.3d 1119, 1123 (9th Cir. 2003). This represents a "legislative ju d g m e n t to effectively immunize providers of interactive computer services from civil lia b ility in tort with respect to material disseminated by them but created by others." B lu m e n th a l v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998); see also Almeida v. Amazon.com, In c ., 456 F.3d 1316, 1321 (11th Cir. 2006) ("The majority of federal circuits have interpreted

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th e CDA to establish broad federal immunity to any cause of action that would make service p ro v id e rs liable for information originating with a third-party user of the service"). The F o u r th Circuit explains: C o n g re s s ' purpose in providing the § 230 immunity was thus e v i d e n t. Interactive computer services have millions of users. T h e amount of information communicated via interactive co m p u ter services is therefore staggering. The specter of tort lia b ility in an area of such prolific speech would have an o b v io u s chilling effect. It would be impossible for service p ro v id e r s to screen each of their millions of postings for p o s s ib le problems. Faced with potential liability for each m e ss a g e republished by their services, interactive computer s e rv ic e s providers might choose to severely restrict the number a n d type of messages posted. Congress considered the weight o f the speech interests implicated and chose to immunize service p ro v id e rs to avoid any such restrictive effect. Z e r a n v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997). C D A immunity is not absolute. Among other exceptions, the CDA provides that n o th in g "in this section shall be construed to limit or expand any law pertaining to in te lle c tu a l property." § 230(e)(2). For example, if Stayart successfully stated a claim for f a ls e endorsement under the Lanham Act, Yahoo! would not be immune from liability for th o se claims because such a claim would probably be considered an intellectual property c la im . However, one of the fatal flaws in Stayart's Lanham Act claim is that Yahoo! did not u s e Stayart's name in connection with their own goods or services. See Heartbrand Beef, In c . v. Lobel's of New York, LLC, No. V-08-62, 2009 WL 311087, at *3 (S.D. Tex. Feb. 5, 2 0 0 9 ). Yahoo!'s search results include abstracts, or snippets, that contain multiple samples o f text appearing in various places on the third-party websites. Yahoo! does not create this

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c o n te n t, it only displays the content in response to a C-user's search results. It follows that Y a h o o ! did not create the content Stayart complains about. S in c e Yahoo! did not create the content Stayart finds objectionable, the only way the in te lle c tu a l property carve-out applies is if Yahoo! can be held secondarily liable under th e o rie s of vicarious liability or contributory infringement. See Hard Rock Café Licensing C o r p . v. Concessions Servs., Inc., 955 F.2d 1143 (7th Cir. 1992). Even after receiving

S ta ya rt's complaints, Yahoo! cannot be held liable for failing to remove the offending search re su lts . Yahoo! did not create the offending content and did not exert any control over the th ird party websites where the alleged infringement occurred. See Lockheed Martin Corp. v . Network Solutions, Inc., 194 F.3d 980, 984 (9th Cir. 1999) (courts consider the "extent of c o n tro l exercised by the defendant over the third party's means of infringement"); SB D e sig n s v. Reebok Int'l, Inc., Ltd., 338 F. Supp. 2d 904, 913-14 (N.D. Ill. 2004) (defendant th a t exerted no control over allegedly infringing third-party website cannot be held c o n trib u to rily liable). Similarly, Yahoo! cannot be vicariously liable without "a finding that th e defendant and the infringer have an apparent or actual partnership, have authority to bind o n e another in transactions with third parties or exercise joint ownership or control over the in f rin g in g product." Hard Rock, 955 F.2d at 1150. In d e e d , the only way Yahoo! could exert any control over the results of a search en g ine query would be to change its underlying, proprietary algorithm. This goes to the heart o f Yahoo!'s role as an interactive computer service. "[O]rdinary search engines [such as G o o g le and Yahoo!] do not use unlawful criteria to limit the scope of searches conducted on

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th e m , nor are they designed to achieve illegal ends. . . . Therefore, such search engines play n o part in the `development' of any unlawful searches." Fair Housing Council of San F e rn a n d o Valley v. Roomates.com, LLC, 521 F.3d 1157, 1167 (9th Cir. 2008). In this re sp e c t, Yahoo! should be entitled to immunity because it acted as an interactive computer s e rv ic e , even though Stayart's claims are nominal intellectual property claims. See, e.g., P a r k e r v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006) (Google qualified as an in t e ra c tiv e service provider because "[i]n each instance raised by Plaintiff's tort claims, G o o g le either archived, cached, or simply provided access to content that was created by a th ird party"); Murawski v. Pataki, 514 F. Supp. 2d 577, 591 (S.D.N.Y. 2007) (ICS cannot be h e ld liable for text displayed when plaintiff ran a search for his own name, because the text w a s "information provided by another information content provider"). Immunizing Yahoo! f r o m Stayart's claims would not limit the laws pertaining to intellectual property because S ta ya rt does not state a valid intellectual property claim. See Gucci Am., Inc. v. Hall & A s s o c ., 135 F. Supp. 2d 409, 413 (S.D.N.Y. 2001) (refusal to apply doctrine of contributory in f rin g e m e n t to an ISP would limit the laws pertaining to intellectual property in co n trav en tio n of § 230(e)(2)). T h in g s are less clear with respect to Various. In some contexts, the

A d u ltF r ie n d F in d e r website acts as an interactive computer service, but Stayart's complaint r e l a t e s to the content of the AdultFriendFinder banner ad that was associated with the h ttp ://je w e lle ry-m a k in -d o o rw a y.o rg e .p l/b e v -s ta ya rt.h tm l URL. "A website operator can be b o th a service provider and a content provider: If it passively displays content that is created

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e n tire ly by third parties, then it is only a service provider with respect to that content. But a s to content that it creates itself, or is `responsible, in whole or in part' for creating or d e v e lo p in g , the website is also a content provider." Roommates, 521 F.3d at 1162-63. V a rio u s ' role in the creation of the banner ad content is unclear. At the pleading stage, the C o u rt is unable to conclude that Various is entitled to immunity. III. S u p p le m e n ta l jurisdiction S tayart asks the Court to assert supplemental jurisdiction 6 over her state law right to p riv a c y claims. See 28 U.S.C. § 1367. The "general rule is that when as here the federal c la im drops out before trial (here way before trial), the federal district court should relinquish ju ris d ic tio n over the supplemental claim." Van Harken v. City of Chi., 103 F.3d 1346, 1354 (7 th Cir. 1997); § 1367(c)(3). The presumption in favor of dismissal is strong because once th e federal claims give way, "respect for the state's interest in applying its own law, along w ith the state court's greater expertise in applying state law, become paramount concerns." K e n n e d y v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 728 (7th Cir. 1998). One e x c e p tio n to the general rule is when "it is obvious how the claims should be decided." W illia m s Elecs. Games, Inc. v. Garrity, 479 F.3d 904, 907 (7th Cir. 2007); see also Van H a r k e n , 103 F.3d at 1354 (if an "interpretation of state law that knocks out the plaintiff's state claim is obviously correct, the federal judge should put the plaintiff out of his misery

Stayart does not allege jurisdiction under the federal diversity statute, 28 U.S.C. § 1332, even though it appears t h a t the parties may be completely diverse. See Boggs v. Adams, 45 F.3d 1056, 1059 n.7 (7th Cir. 1995) (plaintiffs i n v o k i n g diversity must allege that the amount in controversy exceeds the jurisdictional amount); Simon v. Allstate E m p lo y e e Group Med. Plan, 263 F.3d 656, 657 n.1 (7th Cir. 2001) (allegation of residency is insufficient to establish d iv e r s ity jurisdiction).

6

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th e n and there, rather than burdening the state courts with a frivolous case"). In the interests o f judicial economy, the Court will analyze the merits of Stayart's state law claims to d e ter m in e whether they can be easily resolved here in federal court.7 S ta ya rt asserts a common law and statutory right to privacy claim against Yahoo! and V a rio u s . At common law, there were four distinct privacy torts: (1) intrusion into seclusion, s o litu d e , or private affairs; (2) public disclosure of embarrassing private facts; (3) false light in v a s io n of privacy; and (4) appropriation of the plaintiff's name or likeness. See Hirsch v. S .C . Johnson & Son, Inc., 90 Wis. 2d 379, 280 N.W.2d 129 (1979) (citing Prosser, Privacy, 4 8 Cal. L. Rev. 383, 389 (1960)). Wis. Stat. § 995.50 codifies three of the four torts,8 in c lu d in g the misappropriation tort. The relevant section defines "invasion of privacy" as th e "use, for advertising purposes or for purposes of trade, of the name, portrait or picture of a n y living person, without having first obtained the written consent of the person . . ." § 9 9 5 .5 0 ( 2 ) ( b ) . In response to the motions to dismiss, Stayart characterizes her claim as a "right to p u b lic ity" claim. In a case involving the famous football player Elroy "Crazy Legs" Hirsch, W is c o n sin recognized the "right to publicity" as the "right of a person to be compensated for th e use of his name for advertising purposes or purposes of trade," which is "distinct from

The other exceptions are when the statute of limitations has run on the pendent claim, and when the interests of j u d i c i a l economy point towards federal retention. See Wright v. Associated Ins. Co., Inc., 29 F.3d 1244, 1251 (7th Cir. 1 9 9 4 ) . Neither exception applies here. See W is . Stat. § 893.57 (2 year statute of limitations for intentional torts); " [ R ] a r e ly when a case is dismissed on the pleadings can `judicial economy' be a good reason to retain jurisdiction." Wright at 1251.
8

7

The statute does not codify the "false light" privacy claim.

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o th e r privacy torts which protect primarily the mental interest in being let alone. The a p p ro p ria tio n tort is different because it protects primarily the property interest in the p u b lic ity value of one's name." Hirsch, 90 Wis. 2d at 387. The claim involves "the right of c o n tro l of the commercial aspects of one's identity." Id. A plaintiff must possess a "property rig h t in his name or identity, which has been appropriated without consent by another for p u rp o s e s of trade." Id. at 397. Defendants argue that Stayart cannot state a right to publicity c la im because her name lacks sufficient commercial value. H o w e v e r, the leading treatise recognizes that the "right to publicity" is really an o f f s h o o t of the more general "appropriation" tort. See J. Thomas McCarthy, The Rights of P u b l ic i ty and Privacy, § 5.60 (2d ed. 2008). Both torts involve the unpermitted use of an ind ividu al's identity, but there are important distinctions between the two torts that are re le v a n t to this case: T h e appropriation branch of the right of privacy gives control o v e r another's commercial use of one's identity only insofar as o n e can establish some bruised feelings. The interest protected is purely one of freedom from a particular kind of infliction of m e n ta l distress. The right of publicity takes the next logical step a n d makes the right of control over commercial use of one's id e n tity complete by giving to each person a complete right to c o n tro l all unpermitted use of one's personality, that is, the right to prevent commercial use regardless of the infliction of mental d i str e ss . 1 McCarthy, Rights of Publicity, § 5.67. More succinctly, Professor McCarthy states that the " c ritic a l difference is the nature of the right invaded: either psyche or pocketbook." Id.

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W h en viewed through this lens, it appears that Stayart could state a claim based upon a pure a p p ro p ria tio n theory, as distinguished from a pure right to publicity theory.9 M o re o v e r, the distinction between an appropriation theory and a right to publicity th e o ry is also relevant with respect to CDA immunity. A "right to publicity" claim like the o n e recognized in Hirsch is generally considered an intellectual property claim, see Almeida, 4 5 6 F.3d at 1322, which implicates the exception in § 230(e)(2) (nothing "in this section s h a ll be construed to limit or expand any law pertaining to intellectual property"). Further c o m p lic a tin g matters is the disagreement among various federal courts regarding the scope o f the intellectual property exception. Compare Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1 1 0 2 , 1119 (9th Cir. 2007) (the term "intellectual property" in § 230(e)(2) should be c o n stru e d to mean "federal intellectual property"); Doe, 540 F. Supp. 2d at 302 ("Consistent w ith its text, § 230(e)(2) applies simply to `any law pertaining to intellectual property,' not ju st federal law"); Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 703 (S .D .N .Y . 2009) ("Section 230(c)(1) does not provide immunity for either federal or state in telle c tu a l property claims"). To the extent that Stayart is pursuing a right to publicity (in telle c tu a l property) theory under state law, the potential application of CDA immunity m ay present an unsettled issue of federal law. U ltim a tely, the Court is unable to conclude that there is an obvious resolution to S tayart's state law claims. Even though the Court already held that Yahoo! was entitled to

McCarthy writes: "the W i s c o n s i n law has been characterized as a `statutory hybrid,' combining specific e n u m e r a tio n of three types of privacy with a general acknowledgment in 895.50(3) of guidance from `the developing c o m m o n law of privacy.' That section adopting the `appropriation' type of invasion of privacy, and arguably also a s ta tu to r y form of the right of publicity, is modeled upon the New York statute." 1 McCarthy § 6.132.

9

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C D A immunity, the Court cannot say with certainty that a potential right to publicity claim u n d e r Wisconsin law is without merit, meaning that the intellectual property exception could s a v e Stayart's claims. Additionally, the application of CDA immunity to the claims against V a rio u s is unclear, leaving them potentially liable under either theory (misappropriation or rig h t to publicity). In the event that Stayart re-files her claims in state court, defendants w o u ld be free to assert CDA immunity as an affirmative defense. The state courts are welle q u ip p e d to resolve the distinction between computer services and content providers under th e CDA. See, e.g., Berg v. Leason, 32 F.3d 422, 426 (9th Cir. 1994) ("State courts resolve m a tte rs of federal law in similar circumstances with no difficulty; neither an affirmative d ef en se based on federal law, nor one based on federal preemption" can divest a state court o f jurisdiction over a state law claim). It could be argued that the Court should retain jurisdiction because the scope of the C D A 's intellectual property exception presents an unsettled issue of federal law. See Perfect 1 0 ; Doe; Atl. Recording. This concern is too remote to compel the exercise of supplemental ju ris d ic tio n at this early stage in the proceedings. The only way the exception could be im p lic a te d is if Stayart demonstrates that she has a property interest in the commercial value o f her name (like "Crazy Legs" Hirsch), such that her claim could be considered an in te lle c tu a l property claim. As a practical matter, this is an unlikely scenario, although the C o u rt's reasoning is without prejudice to repleading in state court. "When all federal claims h a v e been dismissed prior to trial, the principle of comity encourages federal courts to re lin q u is h jurisdiction." Hansen v. Bd. of Trustees of Hamilton Se. Sch. Corp., 551 F.3d 599,

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6 0 7 (7th Cir. 2008). The speculative possibility that an unsettled issue of federal law could a ris e in state court cannot overcome the presumption in favor of the dismissal of s u p p le m e n t a l state law claims.10 IV . L e a v e to replead S tayart requests leave to replead if her complaint is deemed insufficient. The Court m a y deny a request to replead on the grounds of futility. See DeSalle v. Wright, 969 F.2d 2 7 3 , 278 (7th Cir. 1992). Repleading would be futile if the complaint still wouldn't survive a motion to dismiss. See Garcia v. City of Chi., 24 F.3d 966, 970 (7th Cir. 1994). "To hold o th e rw is e would impose upon the defendants and the court the arduous task of responding to an obviously futile gesture on the part of the plaintiffs." Perkins v. Silverstein, 939 F.2d 4 6 3 , 472 (7th Cir. 1991). In response to the defendants' motions to dismiss, Stayart submits extensive d o c u m e n tar y evidence outside of the pleadings in an attempt to avoid dismissal. A brief in o p p o s itio n to a motion to dismiss cannot amend the complaint. See Perkins at 470 n.6. Even c o n sid e rin g these extrinsic materials, Stayart continues to stop short of alleging or even a rg u in g that she is marketing or using her name and identity for commercial purposes, a re q u ire m e n t to assert Lanham Act standing. The injuries experienced by Stayart are not the typ e that Congress sought to redress by creating a private remedy under the Lanham Act. Stayart's request to replead must be denied on the grounds of futility.

10

Even if a state court was forced to decide whether the exception in § 230(e)(2) extends to state intellectual

p r o p e r ty claims, the United States Supreme Court could theoretically resolve the dispute by granting certiorari.

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M o re o v e r, in the clear absence of any valid federal claims, Stayart would need an a lte rn a tiv e basis to invoke federal jurisdiction on her state law claims. The parties may be d iv e rs e , but it does not seem likely that Stayart could make a good faith allegation that her d a m a g e s are more than $75,000. See § 1332(a). Given the likelihood that Stayart's injuries a re de minimus, granting leave to replead would simply invite more litigation over the p ro p rie ty of federal jurisdiction. If Stayart wishes to pursue her state law claims separately, it is more efficient for her to do so in state court.11 V. S a n c tio n s In response to the defendants' motions to dismiss, Stayart filed motions for sanctions a g a in s t the attorneys for Yahoo! and Various. Although she cites numerous cases

in te rp re tin g and applying Fed. R. Civ. P. 11, Stayart's motion is not a Rule 11 motion b e c a u s e she did not comply with Rule 11's "safe harbor" provision. See Fed. R. Civ. P. 1 1 (c )(2 )(m o tio n must be served under Rule 5, but it must not be filed or presented to the c o u rt if the challenged paper is withdrawn or appropriately corrected within 21 days after serv ice). S t a ya r t cites an alternative basis for the imposition of sanctions, 28 U.S.C. § 1927, w h ic h provides that any "attorney or other person admitted to conduct cases in any court of th e United States . . . who so multiplies the proceedings in any case unreasonably and v e x a tio u s ly may be required by the court to satisfy personally the excess costs, expenses, and a tto rn e ys ' fees reasonably incurred because of such conduct." The Court may impose § 1927

11

Once again, the Court's reasoning is without prejudice to any request for damages in state court.

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sa n c tio n s when an attorney acted in an "objectively unreasonable manner" by engaging in " se rio u s and studied disregard for the orderly process of justice;" pursued a claim that is " w ith o u t a plausible legal or factual basis and lacking in justification;" or "pursue[d] a path th a t a reasonably careful attorney would have known, after appropriate inquiry, to be u n s o u n d ." Jolly Group, Ltd. v. Medline Indus., Inc., 435 F.3d 717, 720 (7th Cir. 2006). The s ta n d a r d for objective bad faith does not require a finding of malice or ill will; reckless in d if f e re n c e to the law will qualify. See Dal Pozzo v. Basic Mach. Co., Inc., 463 F.3d 609, 6 1 4 (7th Cir. 2006). T h e underlying basis of Stayart's motion is that the defendants never should have m o v e d to dismiss her complaint in the first instance. This merely represents Stayart's further d is a g re e m e n t with defendants' arguments regarding the sufficiency of her complaint. The C o u rt already explained that defendants' arguments are well-taken. Even if the Court is u ltim a tely proven wrong in its legal analysis, it certainly cannot be said that the arguments m a d e in the motions to dismiss were objectively unreasonable. M o re specifically, Stayart argues that defense counsel should be sanctioned for relying u p o n "obsolete" cases interpreting the Lanham Act. The cases labeled obsolete by Stayart a r e still good law. Stayart also takes defense counsel to task for failing to cite adverse a u th o rity, including Doe, a district court case from New Hampshire. Defense counsel did n o t act unreasonably in failing to cite adverse authority from a non-controlling jurisdiction. S e e SCR 20:3.3(a)(2) (Candor toward the tribunal) (lawyer shall not knowingly fail to

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d is c lo s e to the tribunal legal authority in the controlling jurisdiction); General L.R. 83.10(a) (W isco n sin Rules of Professional Conduct apply to proceedings in this district). D e f e n d a n ts argue that the Court should treat Stayart's motions as Rule 11 motions, th e denial of which would allow an award of expenses and attorneys' fees to them as p re v a ilin g parties. See Fed. R. Civ. P. 11(c)(2). The Court cannot characterize Stayart's m o tio n as a Rule 11 motion because she did not specifically invoke Rule 11. Additionally, th e Court may not award attorneys' fees as a sanction when it is acting on its own motion u n d e r Rule 11. See Fed. R. Civ. P. 11(c)(4); Methode Elecs., Inc. v. Adam Tech., Inc., 371 F .3 d 923, 926 (7th Cir. 2004). N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: 1. 2. 3. 4. 5. Y a h o o ! and Overture's motion to dismiss [D. 12] is GRANTED; V a r io u s , Inc.'s motion to dismiss [D. 14] is GRANTED; S ta ya r t' s request to replead is DENIED; S ta ya rt's motions for sanctions [D. 22, 24] are DENIED; and T h i s matter is DISMISSED.

D a te d at Milwaukee, Wisconsin, this 28th day of August, 2009. S O ORDERED,

s / Rudolph T. Randa HON. RUDOLPH T. RANDA Chief Judge

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