An Unhelpful Amicus: Section 230 Precludes the Injunction, Except That it Doesn’t

I’ve been reading through the amicus briefs in Garcia v. Google, which the Ninth Circuit has conveniently gathered for those interested, and I came across what I think must be one of the least helpful arguments ever made by a “friend of the court.” Mind-bogglingly so.

The brief argues—with what I presume is a straight face—that the injunction in Garcia, a federal question copyright case, is precluded by Section 230. At the same time, however, the brief admits that Section 230 doesn’t actually apply.

The Ninth Circuit solicited amicus briefs:

The court grants leave pursuant to Federal Rule of Appellate Procedure 29(a) to any amicus wishing to file a brief bearing on the petition . . . .

How an argument about Section 230 has any “bearing on the petition,” I truly don’t know. Google’s petition for rehearing en banc, unsurprisingly, makes no mention of Section 230, instead simply arguing that the Ninth Circuit applied the wrong preliminary injunction standard.

It’s a well-worn truism that “by the nature of things an amicus is not normally impartial.”1 But the impartiality displayed here goes far beyond any pretense of assisting the court.

The brief asserts that “here the law explicitly restricted those [remedies] that could be imposed on intermediaries like Google.” And claimed among the applicable remedy-restricting laws is Section 230. This is not some makeweight argument thrown in at the end. This is the brief’s lead argument.

The brief maintains, quite correctly:

Section 230 is therefore unequivocal in the immunity it provides intermediaries, decreeing that, “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.” § 230(c)(1).

That’s precisely what Section 230 says, but it also says that Section 230 doesn’t apply in copyright cases: “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”2

And, remarkably, the brief admits as much in the associated footnote:

While Section 230’s immunity is unequivocal there are a few exceptions to its applicability, including for claims involving intellectual property. § 230(e)(2). However, even if Garcia’s copyright claim were valid, the principles underlying Section 230 remain central to the present dispute.

This is the argument that rebuts itself. Over the course of two pages, the brief goes from claiming that “here the law explicitly restricted” the injunction to an admission that the law in question doesn’t even apply—and explicitly so. I would say you can’t make this stuff up, but apparently you can.

Undeterred by its own contradiction, the brief tries to salvage things by claiming that it’s nevertheless the “principles underlying Section 230” that preclude the injunction here. What legal support is cited for this curious proposition? None, naturally. And surely none exists.

Why would the principles that underlie a statute that explicitly does not limit the law pertaining to intellectual property preclude an injunction in a copyright case? Policy reasons can inform the scope and nature of the relief, no doubt, but that’s a different animal than claiming that Section 230 outright precludes the injunction.

Incredibly, and without hint of irony, the brief continues:

Because Section 230 puts user-generated content beyond the reach of court orders for deletion, plaintiffs often try to bypass its reach by recasting their state law claims, for which intermediaries would be immune from requirements to take it down, as intellectual property claims, for which intermediaries are not. . . . . [B]ecause this exemption clearly applies to federal copyright claims it has become very easy for people to censor content they don’t like by simply by framing their displeasure as a copyright claim, however speciously, because doing so targets the intermediary’s un-immune Achilles heel.

I have to chuckle at this because, if anything, the brief is trying to bypass the reach of copyright law by recasting the copyright claim in terms of Section 230. Otherwise, that pesky “un-immune Achilles heel” would support the injunction, I suppose.3

So, here you go, Ninth Circuit! Enjoy this wonderful assistance from this “friend of the court”: Section 230 explicitly precludes the injunction, except for the fact that Section 230 explicitly does not apply. That should clear things right up.

Follow me on Twitter: @devlinhartline

© 2014 Devlin Hartline. Licensed under the Law Theories Public License 1.0.

  1. Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970). []
  2. 47 U.S.C.A. § 230(e)(2) (West 2014). []
  3. See 17 U.S.C.A. § 502(a) (West 2014) (“Any court having jurisdiction of a civil action arising under this title may . . . grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.”). []

About Devlin Hartline

Devlin is a husband, father, and law geek (JD & LLM). He is currently an SJD candidate at Tulane Law in New Orleans, Louisiana, where he is writing his dissertation on copyright law. He is also a Mark Twain Copyright Fellow at the Center for the Protection of Intellectual Property at George Mason Law in Arlington, Virginia.
This entry was posted in Copyright Theory and tagged , , . Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>