Well, I got through the en banc opinion in the CDA immunity case of Fair Housing Council v., case no. 04-56916 (9th Cir. Apr. 3, 2008) this weekend. There’s too much on the merits at the links provided in this post for me to get into them. Suffice it to say I’m terribly disappointed the court did not even address the free speech and free association issues I had hoped it would, based on the rehearing petition arguments made in those regards. It boggles my mind that someone might not be able to discriminate in their choice of roommate, and unless offers a very different service than its name suggests, the court’s consistent references to “landlords” and “real estate brokers” makes no sense at all to me.

Fortunately, the court leaves open the possibility of a First Amendment defense in a footnote near the end of the opinion:

We do not address Roommate’s claim that its activities are protected by the First Amendment. The district court based its decision entirely on the CDA and we refrain from deciding an issue that the district court has not had the opportunity to evaluate.

As for the link roundup I promised on Friday:

A commenter at Concurring Opinions — which has generally been critical of broad applications of immunity under the CDA — claims that even if it is lawful to discriminate in selecting a roommate, it is unlawful to run discriminatory ads:

Even though it is true that the “Mrs. Murphy” exception to the FHA permits discrimination in certain scenarios (e.g., selecting a roommate), it has the peculiar feature of banning all advertising about discriminatory preferences–even those that it allows in practice. Under the FHA, someone can lawfully choose to reject all potential roommate applicants except Malaysians, but they cannot run an ad that says “Malaysians only need apply”.

I don’t know if he’s right.

Also, check out, ABA Journal, Decision of the Day, and Info/Law in addition to the Volokh and Professor Goldman links I posted Friday

Since the decision involves the application of immunity under the Communications Decency Act, the case is attracting as much interest from tech bloggers as law bloggers. There are posts at Wired, Mashable, and ars technica.

En Banc Decision in Case

It’s killing me that I don’t have had time yet to digest the combined 56 pagers of the majority opinion and the concurring/dissenting opinion in Fair Housing Council v., case no. 04-56916 (9th Cir. Apr. 3, 2008). You can read my prior coverage in this series of posts. (When you click that link, this post will appear at the top, with prior posts below it.)

I’ll digest the opinions over the weekend, and post a round-up of links on Monday. As expected, The Volokh Conspiracy and Professor Eric Goldman were all over it yesterday, with The Conspiracy’s post garnering the usuall large number of comments. (Plug in “” into the search box of either of those blogs and you’ll find plenty of reading.)

Apple v. Bloggers Settlement includes Shutdown of Apple Rumor Blog

This isn’t really appellate-related, but I figure that at least some of you must be, as I am, a Mac-using lawyer, and will find this of interest.

In this post at The UCL Practitioner, Kimberly Kralowec updates some of her earlier reporting on the Apple lawsuit against some bloggers that had leaked internal Apple information. She provides links to a few articles about the settlement, reminds us that “in 2006, the Court of Appeal ruled that the bloggers were ‘journalists’ and that California’s shield law therefore protected their sources,” and links to some of her earlier coverage about the case. Developments

How Appealing has a detailed post regarding the recent order in the case, in which the Ninth Circuit refused leave for to file an amicus brief in the en banc rehearing proceedings.  I’ve posted about the case here, here, and here.  Professor Eric Goldman has really been staying on top of it, with lots of links to court documents at his Technology & Marketing Law Blog.

Oral argument was held on Wednesday.  Here’s a link to audio of the oral argument posted at the Ninth Circuit website.

Cyber Law Update

Professor Eric Goldman has a post up at his Technology & Marketing Law Blog with an important update on Perfect 10 v., which I blogged about last May.  Specifically, the Ninth Circuit issued an amended opinion Monday that reverses itself on the issue of which party has the burden of proof on a fair use defense in a copyright preliminary injunction context.  As Professor Goldman sums up:

In the original Ninth Circuit Perfect 10 v. Amazon ruling, the court put the burden on the plaintiff to disprove fair use as part of its PI obligations. Now, in an amended opinion, the Ninth Circuit has put the burden on the defendant to establish fair use to defeat the PI.

This doesn’t change the result.  The injunction is still dissolved.

Professor Goldman’s post is well worth reading for anyone at all interested in cyber law.  He explains how this is a continuation of the Ninth Circuit’s struggles with cyber law, that the significance of the issue extends beyond cyberspace, how the press gets the case wrong (shock!),  and conveniently excerpts the relevant language from the original and amended opinions.

If you want more, go get the original opinion and the amended opinion.

New Amicus Briefs in Case

Professor Eric Goldman continues to stay on top of the case with a new post at his Technology & Marketing Law Blog linking to some amicus briefs filed in connection with the en banc rehearing.

If you’re not familiar with this case about whether the immunity provision of the Communications Decency Act protects an online roommate locating service from liability for discriminatory roommate advertisements — as well as the issue of whether one’s right to free intimate association precludes liability for discrimination in advertising for and selecting a roommate — check out my prior posts on the occasions of last May’s panel decision and last month’s order granting rehearing en banc.

En Banc Rehearing Granted in Fair Housing Council v., LLC

Last May, I covered the panel decision in Fair Housing Council v., LLC (9th Cir. 2007) 489 F.3d 921. I had only been blogging for about two weeks at the time, so I stuck to the more technical aspects of the case; specifically, the issue of the scope of immunity that the Communications Decency Act provides for internet service companies. I voice my personal opinion more these days . . . but we’ll get to that in a minute.

The 60-second review, for those who do not want to go to the original post, (though I encourage you to visit it because it contains so many related links) is this: (1) is an internet clearinghouse for people seeking roommates,; (2) two fair housing councils sued, alleging that the website published discriminatory roommate preferences in violation of the Fair Housing Act and various state laws; (3) the trial court granted summary judgment on the ground that the CDA conferred immunity. The Ninth reversed, and I described its holding as follows:

Roommates lacks immunity under the CDA for publishing and e-mailing member profiles containing members’ gender, sexuality, and children information and preferences, which it collects from its members via an interactive, drop-down menu registration process. But . . . Roommates is immune from liability for publishing the free-form comments submitted by its members. Concurring and dissenting, Judge Reinhardt would also find immunity lacking for the latter publication.

No doubt this announcement is going to garner as much attention from bloggers as the panel decision — this time, no doubt, with lots of predictions.

My initial reaction to the case had nothing to do with the actual grounds of decision. Instead, I was astounded that the decision said nothing about whether a person has a right to discriminate in choosing a roommate. The decision seems to presume that one cannot.

That is what I found so astounding. Roommates may not be the most intimate of associates, but the relationship certainly is a personal one. Are we ready to start imposing liability on people who decline a roommate of their disfavored race or religion? Don’t we need to ask whether roommate seekers are engaged in commerce as opposed to intimate association? Take a look at how the court described some of the preferences placed in ads on the website:

Some state that they “Pref[er] white Male roommates,” while others declare that they are “NOT looking for black muslims.” Some don’t want to deal with annoyances such as “drugs, kids or animals” or “smokers, kids or druggies,” while others want to stay away from “psychos or anyone on mental medication.” More friendly folks are just looking for someone who will get along with their significant other or their most significant Other.

The references to “significant other” and “significant Other” (that’s with a capital “O”) were explained in the following footnotes. Re “other”: “The female we are looking for hopefully wont [sic] mind having a little sexual incounter [sic] with my boyfriend and I [very sic].” Re “Other”: “We are 3 Christian females who Love our Lord Jesus Christ . . . . We have weekly bible studies and bi-weekly times of fellowship.”

“[very sic]” . . . that’s quite funny. I have to confess I missed that completely last May.

Anyway, my reaction was just a gut reaction. For a more intellectual analysis of the free speech and free association rights involved, see Professor Eugene Volokh’s post at The Volokh Conspiracy — in which you’ll learn that we have, indeed, already imposed liability for the emotional distress inflicted by a person’s rude refusal of a roommate.

UPDATE (10/12/07): You can access the petition for rehearing and associated briefing at Professor Eric Goldman’s Technology & Marketing Law Blog. Thanks to How Appealing for the link.

UPDATE #2 (10/12/07): Well, I guess Professor Volokh and I have reason to hope. I had a chance to look at the rehearing petition, and it takes up the free speech and free association issues.

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Bloggers Beware

Kevin O’Keefe at Lexblog posts a link to an article on twelve laws every blogger should know.  According to the bullet points, the article covers such issues as a blogger’s duty to monitor comments, the applicability of journalism shield laws, ownership of user-developed content, and more.  The article itself begins:

Internet activity, and particular [sic] blogging, is being shaped and governed by state and federal laws. For US bloggers in particular, blogging has become a veritable land mine of potential legal issues, and the situation isn’t helped by the fact that the law in this area is constantly in flux. In this article we highlight twelve of the most important US laws when it comes to blogging and provide some simple and straightforward tips for safely navigating them.

If you’re blogging, you owe it to yourself to check it out.  And it probably wouldn’t hurt to keep Tuesday’s decision in mind, too.

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More Googlelaw

Perfect 10 publishes photographs of nude women and owns the copyrights in those images.  Google displays thumbnails of those images in its image search results.  Perfect 10 says this is infringement and obtains a preliminary injunction against the practice, but the Ninth Circuit, in Perfect 10, Inc. v., Inc., case no. 06-55405 (May 16, 2007), reverses.

The most written about aspect of the decision is the court’s finding that Google’s display of thumbnail images in its image search results constitutes a non-infringing “fair use” of the images.  Since Perfect 10 failed to show that it was likely to overcome Google’s fair use defense, the court reverses the grant of preliminary inunction.

Kevin O’Keefe of Lexblog says that the decision is “[f]urther evidence that Google is rewriting American copyright law (not saying good or bad).”  It certainly gathered some attention, with bloggers writing about the case at How Appealing, Appealing in Nevada, and Decision of the Day.

Professor Orin Kerr at The Volokh Conspiracy calls it “Another Clash Between Virtual And Physical Perspectives in Internet Law,” and I agree that is one of the more interesting aspects of the case.  I also think the decision does a very good job of distinguishing between the virtual and physical display of an image.  Professor Kerr’s post links to a law review article of his on this issue of perspective.

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Legal Blogosphere Reacts as Ninth Circuit Puts the Brakes on CDA Immunity for Online Services

Yesterday’s Ninth Circuit decision in Fair Housing Council v., LLC, case no. 04-56916 (May 15, 2007) has the digital legal world abuzz . . . as one should expect of the latest decision on the scope of immunity afforded to online services by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c).

In this case, two municipal fair housing councils sued, an online clearinghouse for those seeking to obtain roommates or move in as one. They alleged that the website published discriminatory roommate preferences in violation of the Fair Housing Act and various state laws. The district court found Roommates immune under the CDA and granted summary judgment on the FHA claim.

Judge Kozinski’s majority opinion succinctly summarized the bounds of immunity under the CDA:

In other words, if Roommate passively publishes information provided by others, the CDA protects it from liability that would otherwise attach under state or federal law as a result of such publication. But if it is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity. (Footnote omitted.)

The majority opinion then finds that Roommates lacks immunity under the CDA for publishing and e-mailing member profiles containing members’ gender, sexuality, and children information and preferences, which it collects from its members via an interactive, drop-down menu registration process. But it finds that Roommates is immune from liability for publishing the free-form comments submitted by its members. Concurring and dissenting, Judge Reinhardt would also find immunity lacking for the latter publication.

Some bloggers suggest a possible relationship to anti-blogging sentiment recently expressed by Judge Kozinski. Howard Bashman at How Appealing says this “decision screwing-up the protection from liability for online postings” might have been foreshadowed by “Judge Kozinski’s recent expression of anti-blogger sentiment,” to which he links. David Lat at Above the Law headlines his post about the case: “Does Judge Kozinski Hate Blogs?” University of San Diego School of Law Professor Shaun Martin, blogging at California Appellate Report, spies a “tangential slam on bloggers” in footnote 1 of the opinion, but doesn’t seriously tie the decision to anti-blogging bias.

In a subsequent post, Bashman links to an article about the case that will appear in Wednesday’s New York Times.

UCLA law professor Eugene Volokh at The Volokh Conspiracy has two posts about the case. The first is a detailed analysis of the decision. His second is a commentary on the (un)constitutionality of limiting free speech and free intimate association rights to advertise for and select a roommate of one’s choice.

Professor Eric Goldman of the Santa Clara University School of Law, blogging at Technology and Marketing Law Blog headlines his take “Ninth Circuit Screws Up 47 USC 230.” He sees a “180” being pulled by the court:

Just a couple months ago, in Perfect 10 v. CCBill, the Ninth Circuit issued an incredibly expansive 230 ruling. Today, in a highly fractured opinion, they go in the completely opposite direction, creating a significant exception to 230’s coverage that’s bound to spur plenty of new unmeritorious and ill-advised lawsuits from plaintiffs. Why the 180? Such is life in the Ninth Circuit.

The Decision of the Day blog provides analysis supporting its opinion that the “decision suggests that § 230 may be a lot narrower than some websites would like.

Bashman’s and Goldman’s posts suggest ramifications for pending suits against and the insanely popular Craig’s List.

Thanks to the bloggers mentioned above for providing many of the links.

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