# Opposition Brief — Perfect 10, Inc. v. CCBill LLC (No. 07-266)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

“7 @ [ FILED

NOV 2- 2097 |
No. 07-266 Cin .o = aia Ci ERK
SUrRrWVE COURT, US.
IN THE

Supreme Court of the United States

PERFECT 10, INC., a California corporation,
Petitioner,
v.
CCBILL LLC, CWIE LLC,
Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED States Court oF APPEALS
FOR THE NINTH CIRCUIT

ere a rem me
ee ma ae ee A

|

BRIEF IN OPPOSITION
JAY M. SPILLANE JOHN P FLYNN
RuTH M. Moore Counsel of Record
SPILLANE SHAEFFER ARONOFF DIOGUARDI FLYNN JoNES LLP
BanpDLow LLP 7001 N. Scottsdale Road

1880 Century Park East #2060

#1004 Scottsdale, AZ 85253

Los Angeles, CA 90067 (480) 951-8800

(310) 229-9300

Attorneys for Respondents

212099 ce

COUNSEL PRESS
(S00) 274-2321 + (800) 359-6859

i
QUESTIONS PRESENTED

Under 47 U.S.C. § 230(c)(1), no interactive computer
services provider or user may be held liable for content
provided by another. Section 230(e)(2) provides that this
immunity shall not “limit or expand any law pertaining
to intellectual property.” The Ninth Circuit court of
appeals held that Section 230(e)(2) limits the immunity
provided by Section 230(c)(1) only if a federal intellectual
property claim is asserted. Thus, the Ninth Circuit held
that Section 230(e)(2) did not apply to the state
trademark and right of publicity claims of Petitioner
Perfect 10, Inc. (“Perfect 10”), which were therefore
barred by Section 230(c)(1).

Should the Supreme Court review this decision
where there is no conflict with the decision of any other
circuit court of appeals?

Should the Supreme Court review this decision
where no important federal question requiring resolution
by this Court or conflict with decisions of this Court has
been presented?

Should the Supreme Court review this decision
where the case is ongoing, such that it could be reviewed
later if appropriate?

i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, CCBill, LLC
(“CCBill”) and CWIE, LLC (“CWIE”) disclose that they
are each owned by CWIE Holding Company, Inc., a
privately held company. No publicly held corporation
owns 10% or more of the membership interests in either
CCBill or CWIE.

iii

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ................. i
CORPORATE DISCLOSURE STATEMENT .. ii
SE eT GAPE RIBOT OE. cdncccncedbncvceses: iii
TABLE OF CITED AUTHORITIES ......... Vv
ST UNITE ca 6 civ sn occ cde bevececens 1
COUNTERSTATEMENT OF THE CASE .... 1

A. The Facts of the Case. ................. 1

B. The Proceedings Below. ................ 3
REASONS FOR DENYING THE PETITION . 6
EE, | kb cbs ee radawetencanicacdeuss 9

I. THE NINTH CIRCUIT’S DECISION
PRESENTS NO CONFLICT WITH
ANY DECISION OF ANY COURT OF
Pg gS REE reer rrr ya here 10

II. THE DECISION BELOW DOES NOT
INVOLVE AN IMPORTANT ISSUE OF
FEDERAL LAW THAT SHOULD BE
SETTLED BY THIS COURT, NOR ANY
CONFLICT WITH DECISIONS OF
WE Gn Sodas idea densdeeasisenns 14

iv
Contents
Page

A. No Important Questions of Federal
FT Pe OEE TE TIT TEE OU 14

B. No Conflict with Decisions of this Court.

Vv

TABLE OF CITED AUTHORITIES
Page
Cases

Allison v. Vintage Sports Plaques, 136 F.3d 1443
I oe re ues db adhadsuasey eu ke 13

Ben Ezra, Weinstein, & Co. v. America Online
Inc., 206 F.3d 980 (10th Cir. 2000) ........... 14

Carafano v. Metrosplash.com, Inc., 339 F3d 1119
EE in wel shu acadcweeys cheeséaes 13,14

Cardtoons, L.C. v. Major League Baseball
Players Ass’n, 95 F.3d 959 (10th Cir. 1996)... 13

ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915
NS ea cadet uboabemieece 13

Green v. America Online (AOL), 318 F.3d 465
a 14

Gucci America, Inc. v. Hall & Associates, 135
F. Supp. 2d 409 (S.D.N.Y. 2001) ............. 1 38

Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828
(C.D. Cal. 2006), aff’d in part, rev'd in part
sub nom. Perfect 10 v. Amazon.com, Inc.,
487 F.3d 701 (9th Cir. 2007) ................. 2

vi

Cited Authorities

Page
Perfect 10, Inc. v. CCBill LLC, 340 F. Supp. 2d
1077 (C.D. Cal. 2004), aff’d in part, rev'd in
part, 481 F.3d 751 (9th Cir.), amended, 488 F.3d
EUG GHG GE OOD ciiccvccreesvvcvvawewns passim
Perfect 10, Inc. v. Visa Int'l Serv. Ass’n, 2004 WL
3217732 (C.D. Cal. Dec. 3, 2004), aff’d, 494 F.3d
Se EE 06 6505 doors iw edcawebbaes’s 2
Potomac Electric Power Co. v. Director, Office of
Workers’ Compensation Programs, Dept. of
Labor, 449 U.S. 268 (1980) .....cccccccccccs 18
TVA v. Hill, 437 U.S. 153 (1978) ............... 18
Universal Communication Systems v. Lycos,
Inc., 478 F.3d 413 (1st Cir. 2007) ...... 7,10, 11, 14
Virginia Military Inst. v. United States, 508 U.S.
EE acu oc co Waeesdnavadedsuwenes ceed 15
Voicenet Communications, Inc. v. Corbett, 2006
WL 2506318 (E.D. Pa. Aug. 30, 2006) ........ 11-12
Zacchini v. Scripps Howard Broadcasting Co.,
SE EET tices ncasccuadvanedasnea 13, 19

Zeran v. America Online, Inc., 129 F.3d 327
(4th Cir. 1997), cert. denied, 524 U.S. 937
ROPE Sie appre eempatiny peony poms 2) 13, 14, 18

Statutes

17 U.S.C. § 512
47 U.S.C. § 230
Court Rules
9th Cir. R. 351

Sup. Ct. R. 10

Sup. Ct. R. 29.6

vii

Cited Authorities

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11

il

1
OPPOSITION TO PETITION FOR CERTIORARI

Respondents CCBill, LLC (“CCBill”) and CWIE,
LLC (“CWIE”) hereby respectfully oppose the petition
filed by Perfect 10, Inc. (“Perfect 10”) for a writ of
certiorari to review the decision in this case of the United
States Court of Appeals for the Ninth Circuit. CCBill
and CWIE also hereby oppose and respond to the briefs
of Amicus Curiae Screen Actors Guild, Inc. (“SAG”) and
CMG Worldwide, Inc. (“CMG”).

OPINIONS BELOW

The initial opinion of the court of appeals is reported
at 481 F.3d 751 (9th Cir. 2007). The amended opinion of
the court of appeals is reported at 488 F.3d 1102 (9th
Cir. 2007). The opinion of the district court is reported
at 340 F. Supp. 2d 1077 (C.D. Cal. 2004).

COUNTERSTATEMENT OF THE CASE
A. The Facts of the Case.

Petitioner Perfect 10 publishes an adult
entertainment magazine and the website perfect10.com.
Perfect 10 holds registered copyrights for images of
models appearing in its magazine and on its website, as
well as several trade or service marks. (Petitioner’s
Appendix [“App.”] 34a-35a.) Many of the models
appearing in Perfect 10’s images have signed releases
assigning their rights of publicity to Perfect 10.
(App. 3a.)

2

Perfect 10 claims that its images have been copied
and posted by websites whose proprietors are not parties
to this litigation. (App. 2a.) Rather than suing these
alleged direct infringers, Perfect 10 has sued numerous
Internet service providers whose operations are quite
distant from the alleged infringing activity. In addition
to this lawsuit, Perfect 10 has targeted and filed similar
lawsuits against a number of other payment processors,
search engines, and credit card associations, including
Visa International Service Association, MasterCard
International Inc., Google, Inc., and Amazon.com, Inc.,
for their roles in providing Internet and payment
processing services. See Perfect 10, Inc. v. Visa Intl Serv.
Ass'n, 2004 WL 3217732 (C.D. Cal. Dec. 3, 2004), aff’d,
494 F.3d 788 (9th Cir. 2007); Perfect 10 v. Google, Inc.,
416 F. Supp. 2d 828 (C.D. Cal. 2006), aff’d in part, rev’d
in part sub nom. Perfect 10 v. Amazon.com, Inc., 487
F.3d 701 (9th Cir. 2007). As here, Perfect 10 has theorized
that liability should be imposed on these defendant
service providers because their services allow
webmasters with infringing content to flourish. The
courts in these cases have largely rejected Perfect 10’s
theories.

Respondent CCBill provides “a fully automated
Internet service that enables customers to use credit
cards or checks to pay for subscriptions or memberships
to e-commerce venues created and offered by CCBill’s
clients.” (App. 4a, 39a-40a.) CCBill does not produce,
design, supervise or edit the content of its clients’
websites. (App. 39a.) As Perfect 10 has consistently
acknowledged, CCBill does not itself transmit any
infringing material. (App. 20a, 82a.)

3

Respondent CWIE is a provider of Internet access,
website hosting, and other Internet-related services.
(App. 3a-4a, 37a-38a.) CWIE provides its clients, and
their customers and users, “the means to acquire and
disseminate public, private, commercial, and non-
commercial information,” by supplying what the Internet
industry refers to as “ping, power, and pipe”—ensuring
that the server is on and connecting the client’s server
or website to the Internet backbone via a data center
connection. (Jd.) CWIE does not produce, design,
supervise or edit the content of its clients’ websites.
(App. 38a.)

Contrary to Perfect 10’s unwarranted assertions,
both the district court and the court of appeals found,
save for narrow factual issues to be determined upon
remand, that Respondents had no actual or constructive
knowledge of infringement, and that their services were
not a draw for infringing activity. (App. 9a-18a, 23a-25a,
76a-80a, 83a-88a.)

B. The Proceedings Below.

Perfect 10 sued CCBill, CWIE, and others in district
court for copyright infringement, trademark
infringement, and state law claims, including rights of
publicity and unfair competition. Perfect 10 claimed that
CCBill, CWIE, and others were secondarily liable for
the actions of direct infringers.

The district court bifurcated this action into two
phases, the first relating solely to defenses under the
Communications Decency Act (“CDA”), 47 U.S.C. § 230,
and the Digital Millennium Copyright Act (“DMCA”),

4

17 U.S.C. § 512. After the close of discovery on this first
phase, the defendants filed motions for partial summary
judgment on their CDA and DMCA defenses.

CCBill and CWIE argued that they were entitled to
summary judgment against Perfect 10’s state law claims
because, as interactive computer service users or
providers who were not the providers of tiie challenged
content, they were entitled to the immunity conferred
by 47 U.S.C. § 230(c)(1). They also argued that the safe
harbor provisions of 17 U.S.C. § 512 entitled them to
summary judgment on Perfect 10’s copyright
infringement and other copyright-based claims.

In response, Perfect 10 argued that the CDA
immunity did not apply to its state law claims because,
inter alia, they were supposedly “intellectual property”
claims and thus within an exception to this immunity.
Perfect 10 asserted various factual challenges to the
application of the DMCA’s safe harbors against its
copyright claims.

On the CDA arguments, the district court granted
summary judgment against Perfect 10’s unfair
competition and false advertising claims, which the court
found were not “intellectual property” claims. The court
denied summary judgment on Perfect 10’s right of
publicity and state trademark claims. The district court
reasoned that rights of publicity are “a form of
intellectual property.” It further reasoned that the
intellectual property exception extended to Perfect 10’s
state trademark claim because state trademark law
offers relief similar to federal trademark law. (App. 92a-
103a.)

5

On the DMCA arguments, the district court agreed
with CCBill and CWIE that they were entitled to the
DMCA’ safe harbor protections. (App. 76a-88a.)

The Ninth Circuit affirmed in part and reversed in
part. Interpreting for the first time the CDA’s exception
to immunity for claims arising under a “law pertaining
to intellectual property,” the court of appeals observed
that many types of claims

may—or may not—be characterized as
“intellectual property” claims. While the scope
of federal intellectual property law is relatively
well-established, state laws protecting
“intellectual property,” however defined, are
by no means uniform. Such laws may bear
various names, provide for varying causes of
action.and remedies, and have varying
purposes and policy goals. Because material
on a website may be viewed across the
Internet, and thus in more than one state at a
time, permitting the reach of any particular
state’s definition of intellectual property to
dictate the contours of this federal immunity
would be contrary to Congress’s expressed
goal of insulating the development of the
Internet from the various state-law regimes.

(App. 26a-27a.) Accordingly, the court of appeals held
that the term “intellectual property” referred only to
federal intellectual property and held that CCBill and
CWIE were eligible for CDA immunity from all of
Perfect 10’: state law claims. (App. 27a-28a.)

6

The court of appeals affirmed in part the partial
summary judgment on CCBill and CWIE’s DMCA
defenses and remanded certain questions for further
determination. The court of appeals agreed with the
district court that Perfect 10 had not given CCBill or
CWIE any DMCA-compliant notices regarding any
subscriber’s alleged copyright infringement. However,
the court of appeals held that the district court erred in
not considering CCBill’s and CWIE’s handling of
DMCA-compliant notices from non-parties in ruling that
they had reasonably implemented repeat infringer
policies. The Ninth Circuit also remanded the action for
further findings on whether CCBill or CWIE interfered
with standard technical measures, on the nature of
CCBill’s payments to its clients, and on the facts
concerning operation of hornybees.com. (App. 15a, 18a,
19a, 21a, 31a.)

The case is currently before the district court for
further proceedings to determine the factual issues
remanded by the court of appeals. In addition, the parties
will litigate all facts not within the first phase of the
litigation, namely, those beyond the DMCA and CDA
defenses.

REASONS FOR DENYING THE PETITION

In the opinion below, the Ninth Circuit court of
appeals analyzed, for the first time in any federal
appellate court, the intellectual property exception to
the immunity created by 47 U.S.C. § 230(c)(1). The court
of appeals ruled that 47 U.S.C. § 230(e)(2), which
provides that this immunity shall not be “construed to
limit or expand any law pertaining to intellectual

7

property,” should be read as referring to federal
intellectual property. This opinion is consistent with the
findings and intentions of Congress to promote the
development of Internet computer services with a clear
nationwide immunity. See 47 U.S.C. § 230(a) and (b).
Were the rule otherwise, Internet computer service
providers would be faced with uncertainty across all fifty
states as to which state claims for relief are, involve, or
are akin to “intellectual property.”

The decision was unanimous. Judges Milan Smith,
Stephen Reinhardt, and Alex Kozinski all agreed on the
scope of the intellectual property exception. There was
no dissenting or concurring opinion.

Perfect 10 attempts to manufacture a conflict
between the opinion below and the First Circuit’s opinion
in Universal Communication Systems v. Lycos, Inc.,
478 F.3d 413 (1st Cir. 2007). However, the First Circuit
did not actually analyze the scope of Section 230’s
intellectual property law exception when it affirmed:a
district court’s dismissal of a state trademark dilution
claim on First Amendment grounds. When Perfect 10
called Universal Communication to the Ninth Circuit’s
attention for rehearing en banc, the Ninth Circuit found
that Universal Communication presented no conflict
with its decision in this case. (Petition Appendix [“App.”]
27a.) The Ninth Circuit’s opinion thus presents no
“conflict with the decision of another United States court
of appeals on the same important matter” to merit review
by this Court. Sup. Ct. R. 10(a).

Nor has Perfect 10 demonstrated that the court of
appeals “has decided an important question of federal

8

law that has not been, but should be, settled by this
Court.” Sup. Ct. R. 10(c). The law concerning the scope
of the “intellectual property” exception to Section
230(c)(1) immunity is undeveloped. No court of appeals
has decided the scope of the intellectual property
exception in a manner inconsistent with the decision
below. The issue should be allowed to percolate unless
and until a significant circuit split develops.

Moreover, because this case is not over, this Court
can consider review after there is a final judgment if a
significant split in the circuit courts has then developed.

Finally, the decision of the court below to interpret
the intellectual property exception in a manner
consistent with a broad and uniform federal immunity
for interactive Internet computer operations is correct
and not one deserving of the scarce attention of this
Court.

This Court has not ruled on the scope of 47 U.S.C.
§ 230, and thus there is no conflict between the opinion
below and any decision of this Court.

Amicus Curiae Screen Actors Guild, Inc. (“SAG”)
and CMG Worldwide, Inc (“CMG”) add nothing of
substance to Perfect 10’s deficient Petition. Neither
claims any conflict between the Ninth Circuit’s decision
and the decision of afiy circuit court or of this Court.
Neither has identified an important question of federal
law that must be settled by this Court. SAG and CMG
merely complain that the Ninth Circuit’s decision
supposedly could impede their members’ and clients’
abilities to pursue state law right of publicity remedies

9

against interactive computer service providers.
However, Congress has already weighed these interests
against the risk of stifling development of the Internet
economy posed by attempts to pin liability on interactive
computer service providers for the actions of third
parties. Congress came down squarely in favor of a
robust immunity in favor of such service providers. The
arguments of SAG and CMG may be made in favor of a
new bill in Congress, but they provide no reason for a
review of the decision below under a writ of certiorari.

ARGUMENT

In Section I below, Respondents demonstrate that
the Ninth Circuit’s opinion presents no “conflict with the
decision of another United States court of appeals on
the same important matter” to merit review by this
Court. Sup. Ct. R. 10(a). ‘

In Section II below, Respondents demonstrate that
Perfect 10 has failed to show that the court of appeals
“has decided an important question of federal law that
has not been, but stiould be, settled by this Court,” or
that the decision “has decided an important federal
question in a way that conflicts with relevant decisions
of this Court.” Sup. Ct. R. 10(c).

10

I. THE NINTH CIRCUIT’S DECISION PRESENTS
NO CONFLICT WITH ANY DECISION OF ANY
COURT OF APPEALS.

The thrust of Perfect 10’s petition is that the decision
of the Ninth Circuit supposedly conflicts with a decision
of the First Circuit. Perfect 10 is wrong.

The First Circuit’s opinion in Universal
Communication Systems v. Lycos, Inc., 478 F.3d 413 (1st
Cir. 2007) does not pose an actual conflict with the Ninth
Circuit’s opinion. In Universal Communication, the
First Circuit did not analyze the meaning of “law
pertaining to intellectual property,” but simply assumed
that the state trademark dilution claim at issue came
within this exception. Jd. at 422-23 & n.7. Such an
unconsidered assumption, without analysis, does not
create a conflict worthy of review.

Moreover, the First Circuit’s assumption that
Section 230 did not apply was unnecessary to its
resolution of the case. Although the plaintiff had styled
the claim in question as one under Florida trademark
law, the court found that the claim in fact arose from
criticism of the plaintiff on a website, and affirmed
dismissal of the claim on First Amendment grounds.
Id. at 423-24. In light of the claim’s failure on
independent First Amendment grounds, the First
Circuit’s view as to the inapplicability of Section 230 is
dictum and does not raise a material conflict with the
Ninth Circuit decision.

Notably, the Ninth Circuit rejected the contention
that it created a circuit split when it issued the opinion

11

in this case. (App. 27a-28a n.5.) After the Ninth Circuit
rendered its initial opinion in this case, Perfect 10
requested rehearing en banc on the ground that
the original opinion conflicted with Universal
Communication. Perfect 10’s request prompted the
Ninth Circuit to amend its original opinion to note that
Universal Communication had not decided, but had
merely assumed, that the state law claim there fell within
the intellectual property exception. (/d.) But while the
First Circuit “was able to sidestep the question of what
counted as intellectual property,” the Ninth Circuit
concluded that it could not avoid the question. (/d.) The
Ninth Circuit thus became the first court of appeals to
offer a reasoned interpretation of Section 230’s exception
for laws “pertaining to intellectual property.”

Although Perfect 10 petitioned for rehearing
en banc, making the same arguments it makes here, no
judge deemed Perfect 10’s challenges to the opinion
sufficiently important to‘warrant even a single vote for
rehearing en banc. See Perfect 10, Inc. v. CCBill LLC,
488 F.3d 1102, 1108 (9th Cir. 2007). The Ninth Circuit’s
criteria for granting a rehearing en banc parallel
Supreme Court Rule 10. See 9th Cir. R. 351 (“When the
opinion of a panel directly conflicts with an existing
opinion by another court of appeals and substantially
affects a rule of national application in which there is an
overriding need for national uniformity, the existence of
such conflict is an appropriate ground for suggesting a
rehearing en banc”).

The two district court decisions cited by Perfect 10—
Gucci America, Inc. v. Hall & Associates, 135 F. Supp.
2d 409 (S.D.N.Y. 2001) and Voicenet Communications,

12

Inc. v. Corbett, 2006 WL 2506318 (E.D. Pa. Aug. 30,
2006)—also do not create a legal conflict warranting this
Court’s review. As district court opinions, these decisions
do not create a conflict falling within the grounds for
Supreme Court review under Supreme Court Rule 10.

Moreover, neither of these district court cases
analyzed whether the intellectual property exception
should be read as referring to federal intellectual
property claims. In Gucci America, supra, involving the
sale of jewelry on the Internet bearing the “Gucci” mark,
the plaintiff asserted federal trademark infringement
and false designation of origin claims, as well as
trademark infringement and unfair competition under
New York common law. 135 F. Supp. 2d at 411. The
district court ruled that Section 230(e)(2) barred the
defendant’s motion to apply the Section 230(c)(1)
immunity to plaintiff’s “claims,” without disclosing
whether the motion applied to all of the claims, without
analyzing whether the state trademark and unfair
competition claims were “intellectual property” claims,
and without analyzing whether Section 230(e)(2) should
be read as referring only to federal intellectual property
claims. 135 F. Supp. 2d at 41217.

Voicenet Communications, supra, concerned
whether Internet service providers could base a civil
rights action (against law enforcement officials, for
executing a search warrant) on the ISP’s deprivation of
rights under Section 230. Voicenet did not involve
intellectual property claims or raise any question of the
interpretation of Section 230(e)(2).

13

Neither SAG nor CMG has identified any conflict
between the Ninth Circuit’s decision and the decision of
another circuit court. Each amicus simply complains that
its members or clients are interested in vigorous
enforcement of right of publicity laws on the Internet,
but neither cites a circuit court decision supposedly
conflicting with the decision in this case.

SAG cites authorities supporting its argument that
state rights of publicity are a form of intellectual
property,’ but that was not the issue decided below by
the Ninth Circuit. SAG has cited no conflict between the
Ninth Circuit and any other circuit court concerning
application of Section 230(c)(1) to rights of publicity.
In fact, the Ninth Circuit has consistently applied
Section 230(c)(1) to right of publicity claims, in the
decision below and in Carafano v. Metrosplash.com, ” nC.,
339 F.3d 1119 (9th Cir. 2003).

CMG criticizes the Ninth Circuit for following Zeran
v. America Online, Inc., 129 F:3d 327, 330-31 (4th Cir.
1997), cert. denied, 524 U.S. 937 (1998), which decided
that Section 230(c)(1) provides an immunity. Not only
does Zeran have nothing to do with the scope of the
Section 230(e)(2) intellectual property exception, but
every circuit court of appeals considering the matter has

1 Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.
562 (1977), Cardtoons, L.C. v. Major League Baseball Players
Ass'n, 95 F.3d 959 (10th Cir. 1996), Allison v. Vintage Sports
Plaques, 136 F.3d 1443 (11th Cir. 1998) and ETW Corp. v. Jireh
Pub., Inc., 332 F.3d 915 (6th Cir. 2003).

14

followed Zeran in construing Section 230(c)(1) as
providing an immunity.’

Since the Ninth Circuit’s opinion presents no
“conflict with the decision of another United States court
of appeals on the same important matter,” certiorari
should be denied. Sup. Ct. R. 10(a).

II. THE DECISION BELOW DOES NOT INVOLVE
AN IMPORTANT ISSUE OF FEDERAL LAW
THAT SHOULD BE SETTLED BY THIS COURT,
NOR ANY CONFLICT WITH DECISIONS OF
THIS COURT.

Perfect 10 has demonstrated no other circumstance
compelling use of the Court’s limited resources to review
this case.

A. No Important Questions of Federal Law.

Perfect 10 has failed to show that the court of appeals
“has decided an important question of federal law that
has not been, but should be, settled by this Court.”
Sup. Ct. R. 10(c).

First, the law in this area is undeveloped. The opinion
below is the first opinion to analyze the scope of the
intellectual property exception to the immunity provided

2 See Universal Communication Systems v. Lycos, Inc., 478
F.3d 413, 418-19 (1st Cir. 2007); Green v. America Online (AOL),
318 F.3d 465, 471 (3d Cir. 2003); Carafano v. Metrosplash.com,
Inc., 339 F.3d 1119, 1122-23 (9th Cir. 2003); Ben Ezra, Weinstein,
& Co. v. America Online Inc., 206 F.3d 980, 984-85 (10th Cir.
2000).

15

by Congress in Section 230(c)(1). This area of law should
be further developed by the federal courts in other
circuits before this Court considers reviewing the issues.

Second, the decision of the court of appeals is
interlocutory, and no final judgment has been entered
in this case. The court of appeals remanded the action
to the district court for resolution of further factual
issues related to third party notifications, interference
with standard technical measures, the nature of CCBill’s
payments, and control over one particular website
(hornybees.com). (App. 15a, 18a, 19a, 21a, 31a.) Further,
the parties have yet to litigate at the district court level
the issues beyond phase one, namely, all issues and
defenses other than application of the DMCA and CDA.
Certiorari is properly denied, or deferred until final
judgment in the lower courts, when the court of appeals
has remanded a case to the district court. See Virginia
Military Inst. v. United States, 508 U.S. 946, 946 (1993).

Third, the lower courts in this case have never
considered whether Perfect 10’s causes of action would
be viable but for Section 230’s immunity. If Perfect 10’s
claims would fail on their own merits even without
Section 230, then no construction of Section 230 in this
case would “limit or expand any law pertaining to
intellectual property.” In the absence of any indication
that Perfect 10 would prevail on the merits of its claims
if Section 230 did not immunize CCBill and CWIE,
Perfect 10’s petition raises only an abstract question.

Fourth, Perfect 10’s argument for construing the
intellectual property limitation is strictly one of negation:
Perfect 10 believes that the Ninth Circuit was wrong in

16

construing “intellectual property” to mean “federal
intellectual property.” Perfect 10 has offered no
affirmative alternative construction of Section 230(e)(2)
to substitute for the Ninth Circuit’s definition. Perfect
10 just submits that its diverse state law claims for unfair
competition, false advertising, misappropriation of rights
of publicity, and unauthorized use of a mark should be
allowed to go forward. Without a viable positive
construction of “law pertaining to intellectual property,”
Perfect 10 would leave future courts and litigants without
any guidance for determining the scope of Section 230’s
protection, exposing Internet service providers to the
very uncertainty that Congress intended to eliminate by
enacting Section 230.

Fifth, Perfect 10 has never previously argued to the
district court or the circuit court of appeals that
Congress’s use of the word “Federal” in the criminal
prosecution exception of Section 230(e)(1) implies the
absence of a limitation to federal laws in Section
230(e)(2). (See Pet. 13-15.) Perfect 10 did not raise this
argument until its unsuccessful attempt to obtain a
rehearing after the Ninth Circuit had already rendered
its decision below. The Court should permit the courts
below or in other circuits to develop this point before
considering whether the issue merits review.

Neither SAG nor CMG adds arguments justifying
review of the Ninth Circuit’s ruling. Each essentially
says that its respective members and clients are
interested in pursuing right of publicity claims in relation
to activity on the Internet, and that the Ninth Circuit’s
ruling will impede their ability to pin liability on
interactive computer service providers for content

17

created and posted by third parties. However, Congress
already weighed these interests against the interests of
interactive computer service providers, and concluded
that subjecting interactive computer service providers
to unwarranted civil liability for the activities of third
parties would impede development of the Internet
economy. Congress found the development of Internet
technology and the concomitant economic benefits to be
of vital importance. See 47 U.S.C. § 230(a) & (b).
For example, Congress cited the “extraordinary
advance[s]}” in education and communication offered by
the Internet, 47 U.S.C. § 230(a)(1), and articulated
nationwide policies “to promote the continued
development of the Internet and other interactive
computer services” and “to preserve the vibrant and
competitive free market that presently exists for the
Internet and other interactive computer services,
unfettered by Federal or State regulation,” 47 U.S.C.
§ 230(b)(1) & (2). In light of these findings and policies,
Congress came down squarely in favor of granting the
immunity found in Section 230(c)(1).

The arguments of SAG and CMG would prevent
uniform national application of the CDA immunity.
Internet service providers are simultaneously
conducting business in all fifty states. In the absence of
uniform interpretation of Section 230(e)(2), interactive
computer service providers would be exposed to
different results in all fifty states concerning which state
law claims could be considered “intellectual property”
claims. In enacting the CDA, Congress was particularly
concerned that state law might impose unwarranted
liability on companies that served merely as
intermediaries for other parties’ potentially injurious

18

online material. See Zeran v. America Online, Inc., 129
F.3d 327, 330-31 (4th Cir. 1997) (discussing legislative
purposes of Section 230).

SAG and CMG plead for sympathy for individuals
whose remedies will be limited to recovery from the
actual content providers, who may be judgment-proof.
Such “sympathy is an insufficient basis for approving a
recovery that Congress has not authorized.” Potomac
Electric Power Co. v. Director, Office of Workers’
Compensation Programs, Dept. of Labor, 449 U.S. 268,
284 (1980). In interpreting a statute, members of the
judiciary must put aside their “appraisal of the wisdom
or unwisdom of a particular course consciously selected
by Congress,” for “[o]nce the meaning of an enactment
is discerned and its constitutionality determined, the
judicial process comes to an end.’” Jd. at 284 n. 27
(quoting TVA v. Hill, 437 U.S. 153, 194 (1978)). While
Amici’s pleas for sympathy may be raised in support of
a bill before Congress to revise the scope of the Section
230(c)(1) immunity, these claims provide no basis for a
review of the decision below.

B. No Conflict with Decisions of this Court.

Perfect 10 has failed to show that the Ninth Circuit
court of appeal “has decided an important federal

question in a way that conflicts with relevant decisions
of this Court.” Sup. Ct. R. 10(c).

Perfect 10’s claim that the Ninth Circuit’s decision
conflicts with decisions of this Court is wrong. (Pet. 8,
13-15.) This Court has ruled on the scope of neither the
Section 230(c)(1) immunity nor its intellectual property

19

exception. Perfect 10 is simply urging that one principle
of statutory construction enunciated by this Court
supposedly aids Perfect 10’s reading of Section 230(e)(2).
This is hardly the sort of “conflict” with a decision of
this Court justifying review on 2 writ of certiorari.
Further, the decision of the court of appeals is consistent
with other well-established principles of statutory
construction, such as giving effect to the stated findings
and goals of Congress in enacting Section 230. Congress
made plain its intent to support the developinent of
Internet computer services through a robust and clear
nationwide immunity against secondary liability claims
involving third-party information content. :

Neither SAG nor CMG identifies any decision of this
Court that supposedly conflicts with the Ninth Circuit’s
decision. SAG discusses Zacchini v. Scripps Howard
Broadcasting Co., 433 U.S. 562 (1977), which referred
to the right of publicity as a “propriety interest,”
enforcement of which would serve goals “closely
analogous to the goals of patent and copyright law.”
433 U.S. at 573. However, the Ninth Circuit did not cite
or disagree with Zacchini, nor did it determine whether
the right of publicity is “intellectual property.” The Ninth
Circuit merely interpreted Section 230(e)(2) in a fashion
resulting in uniform nationwide application of the
immunity expressed in Section 230(c)(1).

20
. CONCLUSION

For the foregoing reasons, the petition for a writ of
certiorari should be denied.

Respectfully submitted,
JAY M. SPILLANE JOHN P. FLYNN
Rutu M. Moore Counsel of Record
SPILLANE SHAEFFER DIOGUARDI FLYNN JONES LLP

ARONOFF BANDLOW LLP 7001 N. Scottsdale Road
1880 Century Park East #2060

#1004 Scottsdale, AZ 85253
Los Angeles, CA 90067 (480) 951-8800
(310) 229-9300

Attorneys for Respondents

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1385%3A3. Public record. Not legal advice.