Eric Goldman writes:
Erik Curran was a National Guard soldier who served in “a combat zone.” For reasons unclear from this opinion, he was photographed by an unspecified photographer, and the photo (or photos) of Curran became widely republished. Erik is now suing numerous defendants for violations of his publicity and privacy rights based on these republications.
CaféPress is a defendant because third party users provided Curran’s photos for republication on CaféPress-produced t-shirts. CaféPress asserts a 230 defense.
Superficially, 230 looks possible. The images were provided to CaféPress by third parties, CaféPress is a website, and 230 preempts right of privacy claims. I also think 230 probably bar right of publicity claims; even if the publicity claims are IP claims, they would still be state-based IP claims that should be preempted per ccBill.
Nevertheless, I’m a little confused about CafePress’ 230 defense. Even assuming 230 facially applies, it should cover only CaféPress’ web-based publications and not the vending of physical goods. (As discussed in the Accusearch case, it’s possible that any vending by a merchant of record is outside 230’s scope, even when the vended materials are just online data). Thus, CaféPress’ shipment of physical space t-shirts with an improper image could be outside 230’s scope. Perhaps CaféPress believes (much like Amazon did in the Corbis v. Amazon case) that the physical space sales are made by its users, not CaféPress. I could see a judge buying that argument, but if CaféPress is integrally involved in every aspect of the physical retailing, manufacturing and shipment of the impermissible items, it’s not clear CaféPress can avoid liability for the non-cyberspace activities, none of which should be covered by 230. …
Read his whole post here. See also this, which Eric links to. The current legal framework of cyberspace facilitates free speech, but leaves individuals really vulnerable to defamation, bullying and exploitation, and Section 230 of the Communications Decent Act is a critical component.
–Ann Bartow
