When the Ninth Circuit decided Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008), we opined that the opinion wasn't "all that earth-shattering. It’s crafted to be narrowly applicable to the particular case decided and should not alter the Section 230 analysis in most future cases." Now, more than a year later, about half a dozen federal courts have espoused the same view.
In Goodard v. Google, Inc., 2009 WL 2365866 (N.D. Cal. July 30, 2009), the United States District Court for the Northern District of California held that Roommates "carved out only a narrow exception" to the rule set out in Carafano v. Metrosplash, 339 F.3d 1119 (9th Cir. 2003), that a website consisting of user-generated content "could never be liable [under Section 230 of the Communications Decency Act] because 'no [user] profile has any content until a user actively creates it,'" Roommates, 521 F.3d at 1171 (quoting Carafano, 339 F.3d at 1124) (emphasis added). The court also pointed out two recent district court opinions which reached similar conclusions:
- In Doe v. MySpace, Inc., ___ F.Supp.2d ___, 2009 WL 1457170 (E.D. Tex. 2009), the United States District Court for the Eastern District of Texas found that Roommates was "not applicable" to an action against social networking site MySpace.com because the decision was was only relevant to websites, unlike MySpace, which require their users to provide illicit content.
- In Atlantic Recording Corp. v. Project Playlist, Inc., 603 F.Supp.2d 690 (S.D.N.T. 2009), the United States District Court for the Southern District of New York found that the Roommates decision "was based solely on the fact that . . . Roommates.com . . ., in violation of federal and California state housing law, required potential subscribers to identify their sex, sexual orientation, and family status, and to indicate their preferred sex, sexual orientation, and family status in a roommate."
A couple of other district courts have issued opinions which take the same position: the Roommates decision is narrowly applicable to the facts of that particular case and does not alter the broad immunity afforded by Section 230 in the vast majority of cases. See Lee Baker, Another One Bites the Dust: Roommates as a Hail Mary for Frivolous Lawsuits, Citizen Media Law Project (Aug. 5, 2009); Thomas O'Toole, Five Post-Roommates.com Decisions Confine Immunity Exception to Narrow Circumstances, TechLaw (May 28, 2009).
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