230 Doesn’t Preempt State IP Claims–Atlantic Records v. Project Playlist

17 04 2009

By Eric Goldman

Atlantic Recording Corp. v. Project Playlist, Inc., 2009 WL 766224 (S.D.N.Y. March 25, 2009). The Justia page.

This ruling addresses one of the known “circuit splits” in 47 USC 230 jurisprudence: does 230 preempt state IP claims based on third party content/conduct? The statute (230(e)(2)) says that “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” In the surprising 2007 ccBill opinion, the 9th Circuit read this language to mean that 230 does not preempt FEDERAL IP claims, but all state IP claims were preempted. Then, in the 2008 Friendfinder case, a New Hampshire district court expressly declined to follow the ccBill opinion, concluding that state publicity rights claims weren’t preempted by 230.

As I’ve said before, I think the Ninth Circuit’s statutory analysis in ccBill was daft, so I am not surprised to find another court expressly rejecting it. (In fact, I doubt any court outside the Ninth Circuit will follow the ccBill case).


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