Chubby Checker and 230 Immunity

It’s always nice to get a straightforward case with a straightforward result.  The rather humorous facts involve a trademark suit by singer Chubby Checker (best known for “The Twist”) suing Hewlett Packard (HP) over an app in Palm’s app store called the “Chubby Checker.”  This app claimed that it could guess the size of a man’s genitalia using his shoe size.  Checker, not happy with the association, opted to sue HP for contributory infringement of various intellectual property rights (such as trademark and publicity rights).  Checker also claimed that he went through HP’s notice and takedown procedure, but was ignored.  HP in turn opted to assert a section 230 defense, claiming that they qualified for immunity under section 230 of the Communications Decency Act (CDA).

The court agreed with HP, as they should have.  The purpose of section 230 of the CDA is to protect entities providing third-party content on their websites with protection from other people’s infringement.  This case represents a fairly straightforward example of that exact situation envisioned by the law.  Basically, the CDA does not treat the content provider as the speaker or publisher of information as long as they meet a three-pronged test: 1. the defendant has to provide an “interactive computer service”, 2. the case has to treat the defendant as the speaker or publisher of the harmful information, and 3. the information has to be provided by another speaker or publisher.  The law doesn’t apply to intellectual property rights, but does apply to defamation or obscenity.

While HP didn’t get the trademark infringement claims dismissed, they clearly meet the standards of section 230.  HP after all did not make the Chubby Checker app, even if it was available in their app store.  Checker’s lawsuit acts as if they were the publisher or had some role in the creation and maintenance of that app.  The court, however, concludes that there is no evidence HP had any role in the creation of this app, and thus qualifies for section 230 immunity.  The trademark case will go forward, and HP has some worries there (particularly if they ignored Checker’s notice).

As Eric Goldman points out, this was an easy case.  It is significant because there do not appear to be any other cases making any determination on 230 immunity.  This case ruling should also aid in limiting litigation against the other major app stores for similarly dirty apps.


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