Marshall's Locksmith Serv. Inc. v. Google, LLC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 2018 Decided June 7, 2019

No. 18-7018

MARSHALL’S LOCKSMITH SERVICE INC., ET AL.,

APPELLANTS

v.

GOOGLE, LLC, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-02360)

Barry Roberts argued the cause and filed the briefs for

appellants.

Kathleen E. McCarthy argued the cause for appellees. With

her on the brief were Taylor T. Lankford, Amy W. Ray, Kelsi

Brown Corkran, Benjamin Aiken, Joseph R. Palmore, and Jeff

A. Jaeckel.

Before: GARLAND, Chief Judge, MILLETT, Circuit Judge,

and EDWARDS, Senior Circuit Judge.

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Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: Fourteen locksmith companies

allege that Google, Microsoft, and Yahoo! have conspired to

“flood the market” of online search results with information

about so-called “scam” locksmiths, in order to extract additional

advertising revenue. Am. Compl. ¶ 36. According to the

amended complaint, the defendants further this scheme by

publishing the content of scam locksmiths’ websites, translating

street-address and area-code information on those websites into

map pinpoints, and allegedly publishing the defendants’ own

original content. The district court dismissed the amended

complaint as barred by the Communications Decency Act,

which states that “[n]o provider or user of an interactive

computer service shall be treated as the publisher or speaker of

any information provided by another information content

provider.” 47 U.S.C. § 230(c)(1). We affirm.

I

“This case arises from a motion to dismiss, and so we

accept as true the factual allegations in the [plaintiffs’] amended

complaint.” Hemi Grp., LLC v. City of New York, 559 U.S. 1,

5 (2010). The plaintiffs operate businesses that provide

legitimate locksmith services.1 They face competition from

“scam” locksmiths who misrepresent their businesses in terms

of “services offered, pricing, expertise, training, who is behind

the website, their location, contact information, and whether

1

The plaintiffs refer to themselves as “legitimate” locksmiths.

Although they do not define the term, they appear to mean businesses

that are resident, and registered and/or licensed, in the jurisdictions in

which they advertise and operate. See, e.g., Am. Compl. ¶¶ 36-38;

Locksmiths’ Reply Br. 9.

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they are licensed or registered to do business.” Am. Compl.

¶ 57.

According to the plaintiffs, the internet allows scam

locksmiths to amplify their influence. Consumers typically call

locksmiths when they are locked out of their homes or cars. In

emergencies of this kind, consumers prioritize identifying the

locksmith closest to where they are located. Today, the

“primary means” that an inquiring consumer uses to find a

nearby locksmith is “[l]ocation-based internet search.” Id. ¶ 54.

Both the importance of proximity and the internet’s

potential to create the facade of proximity are not lost on scam

locksmiths. These companies actively cultivate online presences

that give the appearance of locality. Scam locksmiths “publish

hundreds or thousands of unique websites targeting nearly every

heavily populated geographic location all around the country.”

Id. ¶ 57. These pages “display either a fictitious or no address,

and include false claims that [scam locksmiths] are local

businesses.” Id. ¶ 58. Moreover, scam locksmiths use call

centers to generate “local-area phone number[s],” when in

reality they may be located far away from the querying

consumer. Id. ¶ 59. All of these efforts are designed to take

advantage of the structure of the defendants’ search engines. By

so doing, the scam locksmiths have “tricked Google into

displaying [scam locksmiths] as physical stores in [the

consumers’] neighborhoods, when in reality, they’re ghosts.”

Id. ¶ 61B (internal quotation marks omitted).

Legitimate locksmith businesses have suffered significant

economic losses due to competition from scam locksmiths. Id.

¶¶ 42-43. Yet the plaintiffs focus their blame not on the scam

locksmiths themselves, but rather on the search engines that

Google, Microsoft, and Yahoo! operate. Collectively, these

companies control approximately 90% of the online search

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market. Id. ¶ 33. According to the plaintiffs, the defendants use

their market power with respect to online search to extract

payments from legitimate locksmith companies like themselves.

The defendants do this by “deliberately flood[ing] their own

organic and map results with locksmith listings they know are

seriously inaccurate or even nonexistent to induce both

legitimate and scam locksmiths to participate in paid

[advertised] results to overcome the false information.” Id. ¶ 66.

The amended complaint alleges that the defendants carry

out this scheme by publishing three kinds of content that boost

scam locksmith search results and generate advertising revenue.

(As discussed below, the plaintiffs also contend that these kinds

of content are unprotected by the Communications Decency

Act.) First, the defendants publish “[t]hird-party websites

created by scam locksmith[s] that Defendants know do not exist

at the addresses stated thereon.” Id. ¶ 63. Second, the

defendants publish “[e]nhanced content that was derived from

third-party content, but has been so augmented and altered as to

have become new content.” Id. ¶ 62. Finally, the defendants

publish “original content, created out of whole cloth.” Id.

Taken together, the defendants’ publication of these categories

of content has “severely restricted” consumers’ ability to

“discover and contact Plaintiffs and other legitimate

locksmiths.” Id. ¶ 37.

In January 2017, the plaintiffs filed their amended

complaint alleging eight violations of federal and state law. The

three federal counts allege that the defendants engage in false

advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B),

abuse their monopoly power under § 2 of the Sherman Act, 15

U.S.C. § 2, and conspire in restraint of trade under § 1 of the

Sherman Act, id. § 1. The five state-law counts allege common-

law fraud, tortious interference with economic advantage, unfair

competition, conspiracy, and breach of contract.

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The defendants moved to dismiss the amended complaint

on several grounds. As relevant here, they argued that they are

immune from suit under § 230 of the Communications Decency

Act, 47 U.S.C. § 230, which protects online intermediaries from

liability for third-party content posted on their websites.

The district court granted the motion to dismiss, holding

that all counts other than the breach-of-contract count should be

dismissed under § 230. Baldino’s Lock & Key Serv., Inc. v.

Google, LLC, 285 F. Supp. 3d 276, 278 (D.D.C. 2018). The

court reasoned that “it is the scam locksmiths who provide the

original location claim, and the [defendants] have created a

website that simply re-publishes that information along with

associated mapping information.” Id. at 283. Any “extra

information is wholly dependent on the original location claim.”

Id. The court dismissed the remaining breach-of-contract count

for failure to state a claim. Id. at 284.

The plaintiffs timely appealed the district court’s dismissal

of the seven counts that the court held are barred by the

Communications Decency Act. We review de novo the district

court’s grant of the motion to dismiss based on § 230. Bennett

v. Google, LLC, 882 F.3d 1163, 1165 (D.C. Cir. 2018).

II

Section 230 of the Communications Decency Act is the

statutory provision that controls this case. Section 230(c)(1)

states: “No provider or user of an interactive computer service

shall be treated as the publisher or speaker of any information

provided by another information content provider.” 47 U.S.C.

§ 230(c)(1). Section 230(f)(3) goes on to define an “information

content provider” as “any person or entity that is responsible, in

whole or in part, for the creation or development of information

provided through the Internet or any other interactive computer

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service.” Id. § 230(f)(3). As courts uniformly recognize, § 230

immunizes internet services for third-party content that they

publish, including false statements, against causes of action of

all kinds. See, e.g., Bennett, 882 F.3d at 1166; Klayman v.

Zuckerberg, 753 F.3d 1354, 1356 (D.C. Cir. 2014).2

Consistent with Congress’ intent to confer broad immunity

for the re-publication of third-party content, internet services

may invoke § 230 immunity as grounds for dismissal under

Federal Rule of Civil Procedure 12(b)(6). “Preemption under

the Communications Decency Act is an affirmative defense, but

it can still support a motion to dismiss if the statute’s barrier to

suit is evident from the face of the complaint.” Klayman, 753

F.3d at 1357; see Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

2

See also, e.g., FTC v. LeadClick Media, LLC, 838 F.3d 158, 173

(2d Cir. 2016); Jones v. Dirty World Entm’t Recordings, LLC, 755

F.3d 398, 406-07 (6th Cir. 2014); Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009); Doe v.

MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Universal Commc’n

Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418-19 (1st Cir. 2007); Almeida

v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006).

Section 230 effectively confers immunity against federal causes

of action where the claims involve treating the defendant as the

“publisher or speaker.” See Barnes v. Yahoo!, Inc., 570 F.3d 1096,

1100 n.4, 1102 (9th Cir. 2009), as amended (Sept. 28, 2009); Fair

Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521

F.3d 1157 (9th Cir. 2008) (en banc). It also contains a preemption

provision that expressly extends that immunity to “State or local law”

claims “inconsistent with this section,” 47 U.S.C. § 230(e)(3).

Although the Act contains some exceptions, see, e.g., id. § 230(e)(1)

(exempting enforcement of federal criminal laws), the plaintiffs

acknowledge that none of those exceptions applies to this case,

12/19/17 Hr’g Tr. 10 (J.A. 57); see Baldino’s Lock & Key Serv., 285

F. Supp. 3d at 283.

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Inc., 591 F.3d 250, 254 (4th Cir. 2009) (“Section 230 immunity,

like other forms of immunity, is generally accorded effect at the

first logical point in the litigation process.”).

To determine whether dismissal is appropriate, this circuit

has adopted a three-pronged test that tracks the text of

§ 230(c)(1):

The Communications Decency Act mandates dismissal

if (i) [the defendant] is a “provider or user of an

interactive computer service,” (ii) the information for

which [the plaintiff] seeks to hold [the defendant]

liable was “information provided by another

information content provider,” and (iii) the complaint

seeks to hold [the defendant] liable as the “publisher or

speaker” of that information.

Klayman, 753 F.3d at 1357 (quoting 47 U.S.C. § 230(c)(1));

accord Bennett, 882 F.3d at 1166.

In this case, the parties contest only the second prong. See

12/19/17 Hr’g Tr. 8 (J.A. 55). The defendants satisfy the first

prong because the Act broadly defines an “interactive computer

service” as “any information service, system, or access software

provider that provides or enables computer access by multiple

users to a computer server . . . .” 47 U.S.C. § 230(f)(2). Search

engines fall within this statutory definition. See, e.g., FTC v.

LeadClick Media, LLC, 838 F.3d 158, 174 (2d Cir. 2016). And

the defendants satisfy the third prong because the plaintiffs

acknowledge that they seek to hold the defendants liable in their

capacity as a “publisher or speaker” of the content at issue. See

12/19/17 Hr’g Tr. 8 (J.A. 55).3

3

For example, Count I, for monopolization, faults the defendants

for “listing large numbers of artificial listings in their organic results,”

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The sole question on appeal, therefore, is whether the

plaintiffs seek to hold the defendants liable for “information

provided by another information content provider,” as required

by the second prong. 47 U.S.C. § 230(c)(1). If not, then the suit

may proceed. If so, then all three prongs are satisfied, the

defendants are entitled to immunity, and the court properly

dismissed the plaintiffs’ lawsuit.

III

At the motion-to-dismiss stage, we examine the “face of the

complaint” to determine whether the plaintiffs seek to hold the

defendants liable for information provided by another

information content provider. Klayman, 753 F.3d at 1357. The

following analysis addresses the three categories of content that

the amended complaint alleges the defendants publish:

(1) “third-party websites created by scam locksmith[s] that

Defendants know do not exist at the addresses stated thereon,”

Am. Compl. ¶ 63; (2) “[e]nhanced content that was derived from

third-party content, but has been so augmented and altered as to

have become new content and not mere editorialization,” id.

¶ 62; and (3) “original content, created out of whole cloth,” id.

A

First, the plaintiffs allege that the defendants “publish third-

party websites created by scam locksmith[s] that Defendants

know do not exist at the addresses stated thereon.” Am. Compl.

¶ 63. This category of content published by the defendants --

Am. Compl. ¶ 132; Count II, for conspiracy in restraint of trade, faults

the defendants for “knowingly publishing fake listings,” id. ¶ 140; and

Count VII, for false advertising, alleges that the “published material

at issue . . . misrepresents the geographic origin” of the services in

question, id. ¶ 173 (internal quotation marks omitted).

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the posting of third-party content -- is plainly within the

immunity provided by § 230. Indeed, this claim is precisely the

kind that Congress passed § 230 to foreclose. See Bennett, 882

F.3d at 1166, 1168 (citing Zeran v. Am. Online, Inc., 129 F.3d

327, 331 (4th Cir. 1997)).

The plaintiffs do not seriously contest this conclusion.

Before the district court, plaintiffs’ counsel conceded that “we

don’t like the phony websites, but if they got it from somebody

else and simply republished it, the [Act] gives them immunity.”

12/19/17 Hr’g Tr. 7 (J.A. 54); see Recording of Oral Arg. at

7:27-7:54. Nonetheless, the plaintiffs’ amended complaint

repeatedly suggests that the defendants should be held liable for

publishing the content of scam-locksmith websites because they

are “on actual notice” that this content is fraudulent and yet have

failed to act. See, e.g., Am. Compl. ¶¶ 39, 84, 124-28. But it is

“well established that notice of the unlawful nature of the

information provided is not enough to make it the service

provider’s own speech.” Universal Commc’n Sys., Inc. v. Lycos,

Inc., 478 F.3d 413, 420 (1st Cir. 2007); see Bennett, 882 F.3d at

1166 (noting that § 230 immunity applies regardless of whether

the defendant acquired knowledge that the third-party content it

published was false (citing Zeran, 129 F.3d at 331)). Hence, the

amended complaint’s allegations regarding the re-publication of

content from the scam locksmiths’ websites cannot escape the

immunity that § 230 confers.

B

Next, the plaintiffs allege that the defendants create

“[e]nhanced content that was derived from third-party content,

but has been so augmented and altered as to have become new

content and not mere editorialization.” Am. Compl. ¶ 62. The

primary form of “enhanced” content to which the plaintiffs

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object is the defendants’ creation of map pinpoints that display

scam-locksmith locations.

The first question we must address is whether the

defendants’ translation of information that comes from the scam

locksmiths’ webpages -- in particular, exact street addresses --

into map pinpoints takes the defendants beyond the scope of

§ 230 immunity. In considering this question, it is helpful to

begin with the simple scenario in which a search engine receives

GPS data from a user’s device and converts that information into

a map pinpoint showing the user’s geographic location. The

decision to present this third-party data in a particular format --

a map -- does not constitute the “creation” or “development” of

information for purposes of § 230(f)(3). The underlying

information is entirely provided by the third party, and the

choice of presentation does not itself convert the search engine

into an information content provider. Indeed, were the display

of this kind of information not immunized, nothing would be:

every representation by a search engine of another party’s

information requires the translation of a digital transmission into

textual or pictorial form. Although the plaintiffs resisted this

conclusion in their briefs, see Locksmiths’ Reply Br. 3

(declaring that the “location of the inquiring consumer . . . is

determined entirely by the search engines”), they acknowledged

at oral argument that a search engine has immunity if all it does

is translate a user’s geolocation into map form, see Recording of

Oral Arg. at 12:07-12:10.

With this concession, it is difficult to draw any principled

distinction between that translation and the translation of exact

street addresses from scam-locksmith websites into map

pinpoints. At oral argument, the plaintiffs could offer no

distinction, and we see none. In both instances, data is collected

from a third party and re-presented in a different format. At

best, the plaintiffs suggested that a line could be drawn between

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the placement of “good” and “bad” locksmith information onto

the defendants’ maps. See id. at 12:43-12:58 (accepting that, “to

the extent that the search engine simply depicts the exact

information they obtained from the good locksmith and the

consumer on a map, that appears to be covered by the [Act]”).

But that line is untenable because, as discussed above, Congress

has immunized the re-publication of even false information.

The next question is whether the translation of somewhat

less-exact location descriptions is protected by the Act. This

requires somewhat more discussion. The plaintiffs describe a

situation in which the defendants create a map pinpoint based on

a scam locksmith’s website that says the locksmith “provides

service in the Washington, D.C. metropolitan area” and “lists a

phone number with a ‘202’ area code.” Locksmiths’ Br. 8; see

also Locksmiths’ Reply Br. 4-5. According to the plaintiffs, the

defendants’ search engines use this information to “arbitrarily”

assign a map location within the geographic scope indicated by

the third party. Locksmiths’ Br. 8.

We conclude that these translations are also protected.

First, as the plaintiffs do not dispute, the location of the map

pinpoint is derived from scam-locksmith information: its

location is constrained by the underlying third-party

information.4 In this sense, the defendants are publishing

4

See Am. Compl. ¶ 61B (“These businesses . . . have tricked

Google into displaying them as physical stores in their neighborhoods,

when in reality, they’re ghosts.”); id. ¶ 103 (“Defendants’ algorithms

organize their organic results by factoring in the geographic proximity

of each search result to the [querying] user, with the same

geographically restrictive result as an outright map search.”); id. ¶ 111

(“Defendants’ algorithms organize, rank, categorize, correlate, and

display results for organic, map, and paid results.”); see also

Recording of Oral Arg. at 14:30-14:55 (plaintiffs’ counsel) (“Let’s say

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“information provided by another information content provider.”

Cf. Kimzey v. Yelp!, Inc., 836 F.3d 1263, 1270 (9th Cir. 2016)

(holding that Yelp’s star rating system, which is based on

receiving customer service ratings from third parties and

“reduc[ing] this information into a single, aggregate metric” of

one to five stars could not be “anything other than user-

generated data”). It is true that the location algorithm is not

completely constrained, but that is merely a consequence of a

website design that portrays all search results pictorially, with

the maximum precision possible from third-party content of

varying precision. Cf. Carafano v. Metrosplash.com, Inc., 339

F.3d 1119, 1125 (9th Cir. 2003) (“Without standardized, easily

encoded answers, [Matchmaker.com] might not be able to offer

these services and certainly not to the same degree.”).5

Second, and also key, the defendants’ translation of third-

party information into map pinpoints does not convert them into

“information content providers” because defendants use a

the scammer represents that it provides service throughout the D.C.

metropolitan area. The search engine will arbitrarily put a pinpoint,

and often actually assign an arbitrary address, to the scammer

somewhere in the D.C. area.”); David Segal, Fake Online Locksmiths

May Be Out To Pick Your Pocket, Too, N.Y. TIMES (Jan. 30, 2016)

(referenced in Am. Compl. ¶ 61B) (explaining that scammers “game

Google’s algorithm” by inputting their misleading location

information into two Google “platforms: Google My Business . . . and

Map Maker”).

5

To be clear, we do not hold that § 230 protects all information

derived from third-party information. Because the defendants’ map

pinpoints hew to the third-party information from which they are

derived -- and because, as we discuss below, the pinpoints are derived

neutrally as well as algorithmically -- today we need not decide

precisely when an entity that derives information can be considered to

have “creat[ed] or develop[ed]” it. 47 U.S.C. § 230(f)(3).

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neutral algorithm to make that translation. We have previously

held that “a website does not create or develop content when it

merely provides a neutral means by which third parties can post

information of their own independent choosing online.”

Klayman, 753 F.3d at 1358; accord Bennett, 882 F.3d at 1167;

see Kimzey, 836 F.3d at 1270 (holding that Yelp’s “star-rating

system is best characterized as the kind of neutral tool[]

operating on voluntary inputs that . . . [does] not amount to

content development or creation” (internal quotation marks

omitted) (citing Klayman, 753 F.3d at 1358)). And the Sixth

Circuit has held that the “automated editorial act[s]” of search

engines are generally immunized under the Act. O’Kroley v.

Fastcase, Inc., 831 F.3d 352, 355 (6th Cir. 2016).

Here, the defendants use automated algorithms to convert

third-party indicia of location into pictorial form. See supra

note 4. Those algorithms are “neutral means” that do not

distinguish between legitimate and scam locksmiths in the

translation process. The plaintiffs’ amended complaint

effectively acknowledges that the defendants’ algorithms

operate in this fashion: it alleges that the words and numbers the

scam locksmiths use to give the appearance of locality have

“tricked Google” into placing the pinpoints in the geographic

regions that the scam locksmiths desire. Am. Compl. ¶ 61B. To

recognize that Google has been “tricked” is to acknowledge that

its algorithm neutrally translates both legitimate and scam

information in the same manner. Because the defendants

employ a “neutral means” and an “automated editorial act” to

convert third-party location and area-code information into map

pinpoints, those pinpoints come within the protection of § 230.6

6

The same is true of the streetscape photos and driving directions

about which the plaintiffs also complain. See Am. Compl. ¶¶ 94,

173E. These are a function of the map pinpoints that the defendants’

algorithms generate from the location information provided by the

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C

Finally, the plaintiffs allege that the defendants publish

“original content” devoid of any third-party origination at all.

Am. Compl. ¶ 62. We have addressed some of this allegedly

“original content” in the previous section. For example, the

amended complaint frequently alleges that the defendants create

“false” or “fictitious” addresses. See, e.g., id. ¶¶ 64, 174. But

those allegations refer to the map pinpoints that the search

engines generate in neutral fashion based on third-party

information like area codes, and we have already concluded that

the pinpoints are covered by § 230 immunity.

Elsewhere in the amended complaint, the plaintiffs allege

that the defendants go further. According to the plaintiffs, the

defendants “manually alter their own algorithmic results to

maximize profitability,” untethered from either the information

the locksmiths provide or the algorithms the defendants employ.

Id. ¶ 116. But the plaintiffs do not discuss this allegation in their

appellate briefs, and they have therefore forfeited it. Williams

v. Romarm, SA, 756 F.3d 777, 783 (D.C. Cir. 2014); see FED. R.

APP. P. 28(a)(8)(A).

Finally, the plaintiffs maintain that the defendants’

algorithms place the same scam locksmith’s map pinpoint in

different locations, depending upon a consumer’s location, in

order to make that locksmith appear to be nearby. This

allegation has the mirror-image problem of the allegation just

discussed: it is made in the plaintiffs’ briefs, see, e.g.,

Locksmiths’ Br. 18; Locksmiths’ Reply Br. 5, but is not made

in their amended complaint. It is therefore not relevant in

reviewing the validity of the district court’s dismissal of that

locksmiths’ websites. See Baldino’s Lock & Key Serv., 285 F. Supp.

3d at 281.

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complaint. See Hurd v. District of Columbia, 864 F.3d 671, 678

(D.C. Cir. 2017) (“In determining whether a complaint fails to

state a claim, [the court] may consider only the facts alleged in

the complaint, any documents either attached to or incorporated

in the complaint and matters of which [the court] may take

judicial notice.” (internal quotation marks omitted)).

IV

We close by noting that, although we find § 230 immunity

warranted in this case, that immunity is not limitless. In this

vein, we reject the defendants’ remarkable suggestion at oral

argument that they would enjoy immunity even if they did in

fact entirely fabricate locksmith addresses. See Recording of

Oral Arg. at 37:27-38:20. That assertion is plainly inconsistent

with the scope of the immunity that Congress has conferred. If

the defendants were to fabricate addresses, those addresses

would not be “information provided by another information

content provider.” 47 U.S.C. § 230(c)(1). And the defendants

would not be entitled to immunity.

For the foregoing reasons, the district court’s dismissal of

the complaint as barred by § 230 of the Communications

Decency Act is

Affirmed.