myspace in a post-grokster world: digital finger pointing for offenses

Transcription

MYSPACE IN A POST-GROKSTER WORLD:
DIGITAL FINGER POINTING FOR OFFENSES
PERPETRATED THROUGH USE OF SOCIAL
NETWORKING SITES AFTER MGM v. GROKSTER.
CherylJ Eisner*
INTRODUCTION
The human condition compels each person to seek closeness with
others. Everyone wants to make friends and to form relationships.
That instinct is what makes social networking websites so profitable: the
widespread nature of their appeal. These websites seemingly serve no
purpose other than to provide a forum through which people make contact with others. The fact that social networking websites attract so
many users means that there are over one billion pages on which to
advertise.1 The magnitude of potential advertising revenues has made
online networking one of the fastest-growing enterprises in the Internet
age.2
Before the twenty-first century, social networking meant going to
clubs, parties, social events, and similar gatherings and physically meeting people; this usually involved formal introductions and handshakes.
Today, social networking means you can make hundreds of "friends"
without leaving your bedroom. MySpace.com ("MySpace" or "the
Site"), one of the leading social networking websites, calls itself "a place
for friends." '3 What makes MySpace more popular4 than competing
* The author is a J.D. candidate, 2008, at Benjamin N. Cardozo School of Law, Yeshiva
University. She would like to thank the attorneys on the MySpace case at Arnold & Itkin, LLP
(Houston, TX) and Vinson & Elkins, LLP (Austin, TX) for their information and assistance.
She would also like to thank Professor Max Minzner, her note editor, Greg Cram, and her
articles editor, Dov Berger, for their helpful advice and guidance, and Daniel Tauber, for his
ideas, help and support.
1 See Saul Hansell, Making Friends Was Easy. Big Profit Is Tougher., N.Y. TIMES, Apr. 23,
2006, § 3, at 1.
2 MySpace is said to be worth as much as $650 million. See Plaintiffs' Memorandum of
Law in Opposition to Defendant MySpace, Inc.'s Motion to Dismiss at 3, Doe v. MySpace,
Inc., No. 06-cv-7880 (SDNY, Nov. 6, 2006) [hereinafter Memorandum].
3 MySpace, http://www.myspace.com. See also, infra Part I, for a description of social
networking websites.
4 See Hansell, Making Friends Was Easy, supra note 1, ("MySpace now displays more pages
each month than any other Web site except Yahoo."); Brief of Appellee at 6, Doe v. MySpace
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networking websites such as Facebook 5 or Hi5 6 is its users' ability to
personalize their homepages and thereby display their individuality,
rather than being limited to the default settings dictated by the
company.7
While MySpace has achieved great popularity, the Site has also created dangers of equal proportion. Teenagers comprise the single largest
group of MySpace users, 8 and teenagers are the most vulnerable to stalkers and predators. 9 There have been a number of complaints from users
who generally feel uneasy about the content of many of the MySpace
pages, discussing instances of harassment, lewdness, pornography, and
other equally offensive pictures and postings.' °
Indeed, MySpace and other social networking websites have been
found to be a haven for sexual predators.1 1 Predators, like anyone else,
can create as many MySpace profiles and identities as they want.12 Each
profile may be different from the last, portraying a different age, school,
job, and even picture. Predators can meet people, chat, and exchange
emails, phone numbers, or photos. Through social networking sites,
predators can develop relationships with their victims, learn about them,
become a part of their lives, and eventually gain their trust.1 3 Though it
Inc., No. 07-50345 (5th Cir. Sept. 19, 2007) ("When Appellant filed this lawsuit, MySpace.com had over 100 million users and was the most visited website in the United States,
recording more daily hits than sites like Yahoo!, MSN, eBay, and Google.").
5 http://www.facebook.com.
6 http://www.hi5.com.
7 See generally MySpace, http://www.myspace.com.
8 Trent Lapinski, The MySpace Report, Jan. 4, 2006, http://trentl.com/?p=52 (last visited
Oct. 16, 2006) [hereinafter MySpace Report] ("MySpace is extremely popular among today's
youth and commands a near cult-like following."); Martin H. Bosworth, What's Inside MyS-
pace.com?,
CONSUMER AFFAIRS,
Apr. 8, 2005, available at http://www.consumeraffairs.com/
newsO4/2006/03/myspace-inside.html ("MySpace is a hot spot for teens and young adults.").
9 Cf Trent Lapinski, MySpace ParentGuide to Understanding Why Teens Use Social Networking Websites, http:lltrentl.coml?p=66 (last visited March 6, 2007) (discussing how teenagers generally are not suspicious of people they meet online and how parents should teach their children
not to be so trusting; urging that teenagers need to be protected).
10 See generally Consumer Complaints about MySpace.com, http:// www. consumeraffairs.com/dating-services/myspace.html(last visited Feb. 7, 2007) [hereinafter Consumer Complaints]. This page is constantly receiving new postings with more complaints.
I1 See Stefan C. Dombrowski, et. al., Protecting Children From Online Sexual Predators: Tech-
nological, Psychoeducational, and Legal Considerations, 35
PROF.
PSvCHOL.:
RESEARCH AND
PRAc. 65, 67 (2004).
12 See Taina Hernandez, MySpace Teen Demonstrates Larger Problem, Good Morning
America, June 12, 2006, http: //abcnews.go.com/GMA/Story?id=
Oct. 28, 2007).
13 See Dombrowski, supra note 11, at 66-67.
2
065 543&page= 1 (last visited
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DIGITAL FINGER POINTING
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may seem as if these websites are at fault for the predators' inappropriate
acts, fault is not an easy question, and the issue has not yet been
decided.
There have been a number of incidents of sexual harassment or
assault that had their beginnings in social-networking site relationships. 4 Victims (usually young girls)' 5 begin to trust their online
"friends" and often agree to meet with them in person, not realizing that
people they meet online cannot always be trusted, even when they have
been in contact for a long time.' 6
This Note focuses on a lawsuit arising from one of these incidents,' 7 Doe v. MySpace, Inc.'8 The girl who filed the suit-referred to
as Julie Doe to maintain her anonymity-is a fourteen-year-old MySpace user' 9 who was sexually assaulted by Pete Solis.2" Julie met Solis on
MySpace, where they developed a relationship. 2 Solis led Julie to believe that he was eighteen years old and still in high school, when in fact
he was nineteen years old and in college.2 2 Julie filed suit in Travis
County, Texas,2 3 asserting that MySpace holds secondary liability for the
assault because the website's lack of security protections or age verification systems made it easier for her to form a relationship with Solis. In
See Robert Crowe, Cyber Crime Sting Leads to 4 Arrests; Area Men Are Accused of Using
MySpace to Solicit Underage Girls, HOUSTON CHRONICLE, Jul. 26, 2006, at B4.
14
15
Id.
16 See Dombrowski, supra note 11, at 66-67.
17 There are four other, similar suits against MySpace to date. See Press Release, Barry &
Loewy, LLP and Arnold & Itkin, LLP, MySpace, News Corp., Sued by Families Whose Daughters Were Assaulted (Jan. 18 2007) (on file with author) [hereinafter Plaintiffi' Press Release].
18 474 F. Supp. 2d 843 (W.D. Tex. 2007).
19 Because Julie is a minor, her mother is also a named plaintiff in the suit. See Complaint,
Doe v. MySpace, Inc., No. 07-50345 474 F. Supp. 2d 843 (W.D. Tex. 2007).
20 Solis has since pled guilty to sexual assault and is now serving a 10-year sentence. Jessica
Mintz, MySpace Hit With Online Predator Suits, AP, Jan. 18, 2007, available at http://
abcnews.go.com/Technology/wireStory?id=2804552 (last visited Oct. 28, 2007).
21 See Complaint, supra note 19, at 1 32.
22 Id. at J 32.
23 Julie's suit has since been joined with the others mentioned. Supra note 17. (There is
confusion as to where the case was actually initiated. The Press Release issued by the plaintiffs'
attorneys, supra note 17, mentions California state court, Plaintiffs' Memorandum, supra note 2,
addresses the Southern District of New York, and the Complaint, supra note 19, was filed in
federal court in Texas. The District Court's decision says the case was filed in Bronx County,
New York in September, 2006, and was removed to the District Court for the Southern District
of New York three days later. Subsequently, Judge Miriam Goldman Cedarbaum transferred the
case to the District Court for the Western District of Texas. Doe v. MySpace, Inc., 474 F. Supp.
2d 843, 846 (W.D. Tex. 2007)).
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other words, the claim is that MySpace caused the incident by not providing sufficient protection for users like Julie.2 4
This Note will use the MySpace case as the basis for analyzing
whether courts should impose liability on interactive computer services
("ICSs") for the illegal acts committed through the use of their websites,
in light of the Supreme Court decision in MGM v. Grokster.25 Further,
the Note will make a distinction between cases where the offense occurs
by virtue of the service the website provides, as in Grokster, and cases
where the website merely facilitates the offense, as in the MySpace case.
Throughout the analysis, it is critical to remember that the contact on
MySpace was not illegal-only the later assault, when they met in person, broke the law.
Part I will provide a general overview of MySpace.com, describing
how the website works, detailing its evolution from MySpace's less-popular predecessors to its acquisition by media baron Rupert Murdoch.
Part I will conclude with a discussion of how the public and some state
attorneys general have reacted to various incidents initiated by contact
through MySpace.
Part II will lay out the details of Julie's case. It will weigh the
strengths of each of the claims in the case, emphasizing the difficulty of
proving causation between use of MySpace's services and the assault. It
will then discuss the fact that there are no federal claims on the issue,
which will segue into Part III. Part III discusses the federal government's response to online predation, which was embodied in the recently proposed bill known as the Deleting Online Predators Act.
Part IV will discuss the district court's reasons for dismissing the
case under the Communications Decency Act of 1996 (the "CDA"),2 6
and will detail the arguments to be presented on appeal of the dismissal
to the Fifth Circuit. It will conclude with a short analysis of why dismissal under the CDA circumvents the real issues underlying this case.
Finally, Part V will analyze Doe v. MySpace in light of the line of
decisions on secondary liability for interactive computer services, and
argue that MySpace more closely resembles the defendant in Sony Corporation of America v. Universal City Studios 27 than the defendant in
24 See, Complaint, supra note 19.
25 545 U.S. 913 (2005).
26 47 U.S.C. §§ 230 et seq.
27 464 U.S. 417 (1984).
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Grokster;28 MySpace's primary purpose is not illegal, and its operators
did not intend or encourage its use to facilitate illegal acts. The issue of
causation plays a role in this part of the analysis as well, although the
standard for causation in tort is different from that in copyright infringement.2 9 The general issue is whether MySpace "provided an environment that facilitated" the assault, 30 and whether that environment
caused the incident.
I.
WHAT IS MYSPACE.COM?
Online social networking in the 1990s was marked by chat rooms
and instant messaging. Over time, networking websites developed and
emerged into the popular culture. 31 A social network is a social structure consisting of nodes that connect people to other individuals or organizations and indicate the way members of a network are connected,
ranging from familial relationships to mere "friends of friends. '3 2 MySpace is the biggest and most popular website of this kind, 33 attracting
more visitors than Google.3 4 The Site began as a place for people to
28 545 U.S. 913.
29 See discussion infra Part II.B.1.
30
31
Memorandum, supra note 2, at 12.
MySpace, the most popular social networking website, has over 100 million users. Brief
of Appellee, supra note 4, at 6.
32 Social Network - Wikipedia, the free encyclopedia, http://en.wikipedia.org/wiki/ Socialnetwork (last visited Nov. 15, 2006). The term "social network" was coined in 1954 by
J.A. Barnes. Id. Social networking analysis began as a modern research technique in academia in
fields such as sociology, anthropology, and social psychology. The average social network at the
time consisted of 124 people. Id; see also Spencer Reiss, His Space, WIRED, Jul. 2006, at 142,
145 ("[T]he Web could connect people to one another, rather than to information . dubbed
online social networking ...").
33 Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 845 (W.D. Tex. 2007). MySpace is said to
have had 45 billion page views in July 2007, and is said to be "the most trafficked website in the
U.S." David Kirkpatrick, MySpace Strikes Back, FORTUNE, Oct. 1, 2007, at 128. A simple
search of the term "social networking website" on Wikipedia, the popular online encyclopedia,
presents a "List of [100] Notable Social Networking Websites." MySpace has the highest user
count, estimated at 289,000,000. See List of social networking websites - Wikipedia, the free
encyclopedia, http://en.wikipedia.org/wiki/Social-networking-websites (last visited Nov. 12,
2007). The membership of its greatest competitor, Facebook, is only a fourth of MySpace's
count. See id.
34 See Bosworth, supra note 8 (discussing an industry poll that showed MySpace had twice as
many unique page views as Google as early in the Site's history as October 2005). Yahoo seems
to be the only site that still
gets more page views than MySpace, but MySpace's popularity
continues to grow. MySpace managed to reach the position of sixth largest market share among
search engines, despite the fact that it is not truly a search engine. Posting of Michael Arrington
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[
meet and make friends, but soon became a popular forum for the introduction of new ideas, especially new music and media.3 5
MySpace users can create profiles that can include photos, songs,
videos, personal information, email addresses, and other contact inforProfiles are meant to tell viewers what the user is like so that
mation.
they can become friends-online, and potentially offline as well. 37 Peo38
ple can connect by finding others who have similar interests and tastes.
A MySpace "friend" can only be established by mutual approval. Once
a friend request is approved, other viewers can connect to that user's
profile through her friends. 39 In other words, users search for new
friends by browsing through their friends' friends.4 °
The Site's creators, Chris DeWolfe and Tom Anderson, have a colorful and extensive history. The two met while working in the marketing and advertising departments of a company called XDrive
Technologies, Inc., which supplied free online storage.4 1 After the dotcom bust, the two founded ResponseBase, LLC, which sold lists of millions of email addresses to anyone who was willing ,to pay for them.4 2
Eventually, ResponseBase was renamed MySpace, LLC, and was purchased by Intermix Media, Inc. (formerly eUniverse, Inc.), a marketing
company that provided external marketers with various "entertainment
and community-oriented Internet products and services. '' 3 The company's business was divided into two categories: sales of assorted paraphernalia through e-commerce websites, and what was called "the
Network. '4 4 The Network was said to offer "a suite of fun and viral
interactive entertainment Websites that people use to communicate and
connect." 45 Some thought this description was perhaps too accurate:
"[v]iral indeed .. .eUniverse . ..is responsible for several variants of
to Techcrunch, http://www.techcrunch.com/2006/06/13/myspace-the-27-billion-pound-gorilla
(Jun. 13, 2006).
35 Bosworth, supra note 8.
36 See generally, MySpace, http://www.myspace.com.
See About Us, http://www.myspace.comlindex.cfm?fuseaction=misc.aboutus.
38 See id.; see also Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 846 (2007); Brief of Appellee,
37
supra note 4, at 7-8.
39 See generally, MySpace, http://www.myspace.com.
40 See Kirkpatrick, supra note 33.
42 Id.
44 MySpace Report, supra note 8.
45 Id.
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software... [such as] Adware ''4 6 and is infamous for the pop-up advertising, unsolicited emails, and spyware behind the controversial file-sharing website Kazaa.4 7
MySpace is most popular amongst teenagers and young adults,
"the most prized demographic in the advertising universe, ' 48 and therefore caught the attention of media mogul Rupert Murdoch, owner of
News Corporation.4 9 Murdoch recognized the great advertising potential on the Site, and purchased Intermix Media, MySpace's parent company, for $580 million in 2005.50 DeWolfe and Anderson had
established themselves as advertising superstars; they had a reputation of
ensuring that ads got exposure-oftentimes appearing on computer
screens of users who did not want them. 5 ' This massive exposure is
exactly what sparked Murdoch's interest in MySpace: it can target advertisements to specified users, or groups of users, allowing advertisers to
reach their desired audience. 52 In addition, most of what users post on
the Site, in the form of personal web pages, becomes the (limited) licensed property of MySpace, 53 and the company can thus sell data
gained from the Site to researchers, with no overhead costs of obtaining
54
this highly valued information.
Simply put, users like MySpace because it is a fun, easy way to
meet people with similar interests, 55 and advertisers like MySpace be46
Id. (citing to Computer Associates' PestPatrol.com).
Id. Kazaa is a peer-to-peer file sharing software, often used to download songs and video
clips for free. See generally http:/lwww.kazaa.comluslindex.htm. Kazaa faced controversy, not
47
only for allowing users to download copyrighted songs and videos, but for the spyware and
adware it installed on users' computers. It was officially declared spyware by Computer Associates in November 2004. MySpace Report, supra note 8. At the time, MySpace was owned by
Sharman Networks, Ltd., the company that supplied the adware for Kazaa. Id.
49 Reiss, supra note 32.
50
Id.
51 See generally, MySpace Report, supra note 8.
52 Id.
MySpace's Terms & Conditions states:
After posting your Content to the MySpace Services, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content
in any way you choose. By displaying or publishing ("posting") any Content on or
through the MySpace Services, you hereby grant to MySpace.com a limited license to
use, modify, publicly perform, publicly display, reproduce, and distribute such Content solely on and through the MySpace Services.
http:l/www.myspace.com/Modules/Common/Pages/TermsConditions.aspx.
55 MySpace Report, supra note 8.
53
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cause it is a quick, easy, and cost-effective way to reach their targeted
audiences. MySpace is not the only website of its kind, but it is "perhaps the first to be controlled by experienced mass-media marketers who
understand [how to build] the audience... advertisers are seeking at the
56
lowest possible cost."
Businessmen like Murdoch seem to think MySpace marks the beginning of a new age in advertising, but not everyone shares his enthusiasm about the Site. MySpace has received a number of complaints
about its lack of security and supervision, particularly with regard to its
younger users. 5 7 Former New York Attorney General Eliot Spitzer sued
Intermix (MySpace's parent company) in 2005 for the spyware58 and
adware5 9 that was installed in millions of computers without the users'
knowledge. 6" Connecticut Attorney General Richard Blumenthal received complaints about sexual predators preying off the Site, and is
investigating potential criminal charges. 6 His investigation has shown
that "children can readily view not only inappropriate material, but also
obscene images through the site's free and publicly accessible areas. The
site posts no warnings that pornography and adult content are present
and has no mechanism to prevent minors from viewing obscene materials. ' ' 6 2 Several other state attorneys general have criticized the Site's insufficient security and failure to implement identity verification
procedures. 63
The Site's Terms & Conditions ("Terms") provide that users must
be older than fourteen, and further provides that, if customer service has
56
Bosworth, supra note 8.
See, e.g. Consumer Complaints, supra note 10, http://www.consumeraffairs.com/dating-services/myspace.html (last visited Feb. 7, 2007) (MySpace users and their parents posted
complaints about the site).
58 "Spyware" is defined as "software that is installed in a computer without the user's knowledge and transmits information about the user's computer activities over the Internet." MER57
RIAM-WEBSTER ONLINE DICTIONAv,
http:/lm-w.com/dictionary/spyware.
"Adware" is referred to as "software that brings unsolicited ads to your computer." MySpace Report, supra note 8.
60 Press Release, Office of the New York State Attorney General Andrew M. Cuomo, State
59
Sues Major "Spyware" Distributor (April 28, 2005), available at http://www. oag.state.ny.us/
press/2005/apr/apr28a05.html. Intermix paid more than $7 million to settle the case without
admitting wrongdoing. Id. See also, Bosworth, supra note 8.
61 Connecticut Opens MySpace.Com Probe, CONSUMER AFFAIRS, Feb. 5, 2006, available at
http://www.consumeraffairs.com/newsO4/2006/02/myspace.html.
62 Id.
63 Hilary Hylton, Another Suit in the MySpace Case?, TIME, Jun. 22, 2006, available at http:/
/www.time.com/time/nation/article/0,8599,1207043,00.html.
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reason to believe a user is younger than fourteen, that user's profile will
be deleted.64 The Terms include a disclaimer which states that operators
cannot always tell when a user is lying.6 5 Regardless of what the Terms
say, MySpace has come under fire for providing a forum for sexual
predators to stalk their prey.66
II.
THE MYSPACE SUIT
A.
Facts of the Case
On June 19, 2006, a fourteen-year-old girl from Austin, Texas,
filed suit against MySpace for facilitating her recent alleged assault by
Pete Solis. 67 The girl created her MySpace user account when she was
only thirteen, despite the Site's eligibility requirements specifying that
users must be at least fourteen years old.6 8 Solis was, at the time, a
nineteen-year-old MySpace user and college student, who falsely represented himself as being an eighteen-year-old high school senior. 6 9 The
girl, anonymously dubbed "Julie Doe" in the suit, 70 claimed that she
met Solis on the Site, began to trust him, and gave him her cell phone
number. 7 ' On May 12, 2006, the two met in person, and Solis sexually
72
assaulted Julie.
In addition to suing Solis for sexual assault and intentional infliction of emotional distress, Julie sued MySpace and Murdoch's News
64 MySpace's Terms & Conditions, paragraph 1 reads:
Eligibility. Use of and Membership in the MySpace Services is void where prohibited.
By using the MySpace Services, you represent and warrant that (a) all registration
information you submit is truthful and accurate; (b) you will maintain the accuracy of
such information; (c) you are 14 years of age or older; and (d) your use of the MySpace Services does not violate any applicable law or regulation. Your profile may be
deleted and your Membership may be terminated without warning, if we believe that
you are under 14 years of age.
http://www.myspace.com/ModuleslCommonPages/TermsConditions.aspx.
65 Id. at par. .12.
32.
67 Complaint, supra note 19, at
68 Hylton, supra note 63.
69 Anita Ramasastry, A Fourteen-Year-Old Girl's Suit Against MySpace: Should Networking
Sites Be Legally Responsible for Protecting Teens from Harmful Real-World Conduct?, FINDLAw.CoM, Jun. 26, 2006, http://writ.news.findlaw.com/ramasastry/20060626.html [hereinafter Ramasastry, Should Networking Sites Be Legally Responsible].
71 Complaint, supra note 19, at 32.
72 Memorandum, supra note 2. See also Ramasastry, Should Networking Sites Be Legally Responsible, supra note 69; Hylton, supra note 63.
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Corporation for fraud and negligence, seeking damages of $30 million. 73 In the suit, she asserted that the two companies were aware that
their site was being used by sexual predators looking to contact minors, 74 but made no efforts to prevent such use, while reassuring users
75
that the Site was monitored and that it was safe for teens.
Likewise, Solis's defense attorney suggested at one point early in
the suit that if the Texas courts 76 were to accept Julie's claim that MySpace is liable simply because it permitted Solis to contact her, then his
client should have a claim against MySpace as well, because Julie also
lied, representing that she was fifteen years old.77
73 Complaint, supra note 19. Solis faced a sentence of 20 years in prison on criminal charges
of felony sexual assault, Hylton, supra note 63, but he was only sentenced to 10 years after he
pled guilty. See supra note 20.
74 See, e.g., Consumer Complaints, supra note 10, http://www.consumeraffairs.com/ dating-services/myspace.html (last visited Feb. 7, 2007). Many of the complaints on this site are
about older users exploiting younger users and using them to serve various sexual, and often
pedophiliac, desires (i.e. the "diaper pervert"). Id.
75 Ramasastry, Should Networking Sites Be Legally Responsible, supra note 69. MySpace has a
link displaying Safety Tips, which sends users to other informational sites, in addition to the
specific warnings listed, such as "[P]EOPLE AREN'T ALWAYS WHO THEY SAY THEY ARE. BE CAREFUL ABOUT ADDING STRANGERS TO YOUR FRIENDS LIST" AND "[D]ON'T MISLEAD PEOPLE INTO
http://www.myspace.com/Modules/Common/
Pages/SafetyTips.aspx.
76 The suit was originally filed in state court in Texas. See Complaint, supra note 19. It has
THINKING THAT YOU'RE OLDER OR YOUNGER."
since been removed to federal court, in the Southern District of New York. See Memorandum,
supra note 2, and then transferred to the Western District of Texas. See Doe v. MySpace, Inc.,
474 F. Supp. 2d 843, 846. This Note analyzes the plaintiffs' claims under Texas law because the
incident occurred in Texas. The plaintiffs discuss the case using Texas law, but demonstrate that
New York law will likely yield similar results. Id. at 9-14.
77 Hylton, supra note 63. Solis has since pled guilty. See Mintz, supra note 20. Solis has
not filed a cross-claim against his co-defendant as of yet, perhaps because he finds it unlikely that
a jury would find in his favor. While it may sound like the same facts and the same cause for
damages on the surface, and may even appear so based on a strict application of a potential
favorable ruling for Julie, in reality the two situations are very different. The difference to a
fourteen-year-old girl between an eighteen-year-old high school senior and a nineteen-year-old
college freshman is much greater than the difference to a nineteen-year-old boy between a fourteen- and a fifteen-year-old high school freshman, although there is no indication that the
knowledge of his true age would have deterred Julie from interacting with Solis. From Solis's
point of view, whether Julie was fourteen or fifteen would not have seemed to matter. Legally,
he would have the same liability for sexual assault of a minor; Julie's truthfulness would not have
made a difference. And it does not seem that a jury would believe him if he argued that he
would not have assaulted her (Solis admitted to having sex with Julie, but claimed that he
thought she was older. See id.), or perhaps not have met up with her at all, had he known that
she was really fourteen and not fifteen. Viewing the situation as a whole, Solis is not as sympathetic a plaintiff as Julie.
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The case was dismissed on February 13, 200778 under the Communications Decency Act of 1996,79 the application of which will be
discussed below,8" but the plaintiffs filed for appeal. 8 1 Regardless of the
final results, this case marks the beginning of the next phase of Internet
liability suits. After the Supreme Court held in Grokster that web service
providers could be found contributorily liable for their users' copyright
infringements, 82 this lawsuit asks the question of whether these providers can be held liable for aiding sexual predators in reaching victims.
B.
The Likelihood of Success of Each Claim
1. Negligence
83
The plaintiffs' 84 Complaint charged that MySpace was negligent in
not protecting young Julie from predators such as Solis. 8 5 To succeed
on a negligence claim, a plaintiff must prove that the defendant
breached a legal duty owed to the plaintiff and that the breach proximately caused plaintiffs injuries."
The Complaint alleged that MySpace had actual and constructive
knowledge that the Site was being used by sexual predators and other
individuals to contact children for harmful and unlawful purposes. 87
The plaintiffs further argued that MySpace owed a legal duty88 to Julie
78 Doe v. MySpace, Inc., 474 F. Supp. 2d 843 (W.D. Tex. 2007).
79 47 U.S.C. § 230.
80 See infra Part II.C (arguing that the Communications Decency Act is in fact inapplicable
to this case), and infra Part IV (discussing the arguments on appeal).
81 See, e.g., Dawn C. Chmielewski and Jim Puzzanghera, Judge Says MySpace Isn't Liable for
Alleged Sexual Assault on Girl, Los ANGELES TIMES, February 14, 2007, available at http://
www.latimes.com/news/nationworld/nation/la-fi-myspace i Sfeb 15,0,4316469.story?coll=lahome-headlines ("Austin lawyer Adam J. Loewy, who represented the girl, said they were disappointed in the ruling and planned an appeal."). Appellate briefs have been filed, and though a
date for oral argument has not been set at the time of this writing, it is expected to take place in
late Spring 2008. Telephone Interview with Christopher Popov, Attorney for Defendants (Oct.
24, 2007).
82 545 U.S. 913 (2005).
83 The District Court dismissed the plaintiffs' negligence claims with prejudice, saying they
failed to state a claim because MySpace had no duty to protect Julie. Doe v. MySpace, Inc., 474
F. Supp. 2d 843, 852 (W.D. Tex. 2007). The discussion of the plaintiffs' claims is in this Note
to provide a comprehensive analysis in the event of an appeal, as well as a well-rounded
discussion addressing MySpace's potential liability in all respects.
84 Both Julie and her mother are the plaintiffs in the suit. See Complaint, supra note 19.
85 Id. at
45-46, 52-53.
86 See 1-1 Texas Torts and Remedies § 1.01 for elements of a negligence claim in Texas.
87 Complaint, supra note 19, at 45, and Exhibits A-D.
88 Id. at 46; see also, Memorandum, supra note 2, at 11.
478
[
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to implement sufficient security measures and to strictly enforce the age
requirements and publication restrictions described in its Terms;8 9 that
MySpace breached that duty by publicly announcing that its security
measures were effective in deterring predatory behavior on the Site and
by generally failing to take active steps toward decreasing the likelihood
of danger to young users like Julie; 9° and that this breach of duty proximately caused 9 ' the sexual assault of Julie Doe, which will likely have
adverse effects on the young girl's physical, mental, and emotional
health for most, if not all, of her life. 92 Julie claims MySpace was grossly
negligent in placing "corporate greed over the health and safety of young
underage MySpace users," displaying an "extreme degree of risk and
/I
"93
callousness.
The plaintiffs argued that MySpace had a legal duty94 to its users to
keep the Site safe, particularly when the company knew many of its
users were young minors-in fact, the company deliberately seeks out
younger users. 95 Additionally, management had received letters from at
least four state attorneys general requesting more effective security, each
recommending specific and relatively inexpensive ways to reduce the
likelihood of danger to users, such as requiring an age verification system where users must provide a valid credit card number in order to
sign up for the MySpace services. 96 Presumably, the reasoning behind
requiring a credit card number is that a valid credit card number would
mean that the user is at least eighteen years old. If the user is not actually eighteen, then the credit card was provided by someone who is eighteen and was presumably provided with knowledge of its intended use.
89 See MySpace's Terms & Conditions on eligibility, supra note 64.
90 Complaint, supra note 19, at 47.
91 Proximate cause requires that (a) the defendant's action be the cause in fact of the injury,
which means that the injury would not have occurred if not for defendant's action and (b) the
injury must have been foreseeable, which means that the defendant, presumed to be a person of
ordinary intelligence, must have been able to anticipate the dangerous results his negligent acts
could cause to others. 1-1 Texas Torts and Remedies § 1.04.
92 Complaint, supra note 19, at 11 48-49.
93 Id. at 11 52-53. If negligence cannot be proven, the gross negligence claim fails as well.
The distinctions between a negligence claim and a gross negligence claim are beyond the scope
of this Note, and therefore the claims will be treated together here.
94 See 1-1 Texas Torts and Remedies § 1.02 for standards relating to duty of care in Texas.
Whether a duty of care exists is a threshold question, to be decided by the court as a matter of
law. Id.
95 Complaint, supra note 19, at 1 43.
96 Id. at Exhibit D.
2008]
However, as exemplified by Judge Sparks' district court opinion, 97
courts sometimes will not impose a duty when doing so would contravene public policy, and will pay special attention to "legislative pronouncements reflecting a particular public policy."9' 8 Also, courts may
not wish to impose legal duties of care in cyberspace, as it may place an
unfair burden on Internet companies that have little or no control over
what users do on their websites. 99 This inclination is also illustrated by
the trial court's dismissal under the Communications Decency Act.' 0
In general, there is no legal duty to protect others from the criminal acts of third parties. 1 ' In this vein, the district court specified that
"the common law rarely requires people to protect strangers," and that
'
"states have enacted statutes to change that norm in some respects,"'12
10 3
citing the Dram Shop laws as an example.
The court goes on to say
that "[p]laintiffs do not identify anything along those lines concerning
web hosts."'0 4 Additionally, the court stated that because the assault
occurred offline, MySpace certainly had no duty to protect Julie, as it
05
did not have control over the premises.1
If the court on appeal 10 6 were to hold that MySpace owed a legal
duty to Julie, it could then reasonably hold that MySpace breached that
duty by making several public statements about improved security, rep97 Judge Sparks focused on legislative intent of promoting online enterprise in enacting the
Communications Decency Act of 1996. Doe v. MySpace, Inc. 474 F. Supp. 2d 843, 847 (W.D.
Tex. 2007).
98 1-1 Texas Torts and Remedies § 1.02[2](a). The Deleting Online Predators Act, 2006
H.R. 5319, and the Communications Decency Act of 1996, codified at 47 U.S.C. 230, both
tend to show legislative policy of protecting Internet companies from the consequences of actions taken by users on their websites, suggesting that it is more appropriate to try to prevent
younger users from using these sites, rather than sanctioning or restricting the sites directly. See
discussion, infira Parts II.C and III.
99 Ramasastry, Should Networking Sites Be Legally Responsible, supra note 69.
100 See Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 850 (W.D. Tex. 2007); see also discussion
of the Communications Decency Act in Part III, infra.
101 MySpace, 474 F. Supp. 2d at 850.
102
Id. at 851-52.
103
Id. (quoting Doe v. GTE Corp., 347 F.3d 655, 661 (7th Cir. 2003)). Dram Shop laws
allow one who was injured due to his intoxication to sue establishments for contributing to that
intoxication. For more information on the Dram Shop laws, see Erin Murphy, Center For Individual Freedom, Blame It on the Bars, http://www.cfif.org/htdocs/freedomline/current/guestcommentary/dram-shop-liability.htm (Jan. 29, 2004).
104 MySpace, 474 F. Supp. 2d at 851-52.
105 Id. at 850.
i06 The plaintiffs have filed an appellate brief requesting oral argument. Brief of Appellant at
iii, Doe v. MySpace Inc., No. 07-50345 (5th Cir. Jul. 19, 2007).
480
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resenting that the Site was safe for users. 10 7 MySpace was warned about
sexual predators using the Site, so assuming there was a duty to protect
users, the jury1"8 would likely find that danger was foreseeable,' 9 and
therefore that the duty was breached by representing that extra security
measures have been implemented on the Site. '
For the plaintiffs to succeed on this claim, the jury would have to
find that, but for MySpace's failure to verify Solis's age, the assault
would not have occurred."' Julie would have to prove that it was "more
probable than not" that MySpace's deficient security measures caused
the assault. 1 2 While it would be difficult to deny that actual injuries to
Julie resulted from her communication with Solis on MySpace, a jury
13
would be hard-pressed to find that MySpace was the proximate cause'
of the injury." 4 MySpace's insufficient security measures may constitute a breach of a legal duty to users like Julie, but that duty, as explicitly set out in the Complaint, is a duty to decrease the likelihood of danger
to its users, rather than a duty to prevent such danger." 5 The distinction may seem facially trivial, but may in fact prove to be relevant. If
the plaintiffs could establish the legal duty as described in the Complaint, the assertion that a breach of that duty proximately caused Julie's
injuries is a greater deduction than the "proximate cause" element of
negligence may allow."' That MySpace proximately caused the assault
107
Complaint, supra note 19, at 11 17, 53(4). See also, Connecticut Opens MySpace Probe,
supra note 61.
108 The plaintiffs demanded a jury trial. Complaint, supra note 19, at 11 21, 91. Because the
reasonableness standard is a community standard, whether the defendant breached his duty of
care in a particular set of circumstances is a question of fact for the jury. 1-1 Texas Torts and
Remedies § 1.03[l].
109 The reasonableness of a defendant's conduct and breach of his legal duty is measured with
regard to the foreseeability of the harm caused to plaintiff. 1-1 Texas Torts and Remedies § 1.03.
110 Saul Hansell, MySpace to Add Restrictions To Protect Younger Teenagers, N.Y. TIMES, June
21, 2006 at C2. However, the plaintiffs insist that "there are absolutely no meaningful protections or security measures to protect young underage users from being contacted by adult sexual
predators on MySpace." Complaint, supra note 19, at 1 39.
111 See 1-1 Texas Torts and Remedies § 1.0412][b].
112 Id. § 1.04[2][a].
113 "[A] defendant's breach of a legal duty is actionable only if the breach was the proximate
cause of the plaintiff's damages." Id. § 1.04[1].
114 The court did not reach the question of whether or not MySpace's lack of safety measures
was the proximate cause of Julie's injuries because it had already dismissed the claim finding no
legal duty. Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 852, n.9 (W.D. Tex. 2007).
Complaint, supra note 19, at J1 15, 46.
In Texas, proximate cause is said to be comprised of two elements: cause in fact, and
foreseeabiliy. If both elements are not present, a breach of a legal duty by a defendant is not
115
116
2008]
on Julie does not logically follow from the alleged breach in not having
tighter security, or more specifically, from not verifying Solis's (or Julie's) age. There are too many steps in between. The "but for" require7
ment to establish proximate cause is simply not present."
Suppose MySpace had prevented Solis from representing himself to
be eighteen, and had required him to truthfully describe himself as a
nineteen-year-old college freshman.' 18 From the facts of the case, as
averred in the Complaint, a jury would be hard-pressed to conclude
with certainty that Julie would not have emailed Solis through MySpace,
given him her cell phone number, and met him at the restaurant. Given
that Julie lied about her own age,' 9 a jury could infer that she may have
been trying to meet older people on the Site.12 ° MySpace asserts that
Solis's actions were a "new and independent cause," which interrupts
the causal connection between MySpace's breach of duty (if one is
found to exist) and the injury, making Solis the immediate cause of the
injury.1 2 ' The plaintiffs contend that this argument lacks merit because
the assault was a reasonably foreseeable result of MySpace's alleged
1 22
breach.
Without establishing that MySpace proximately caused plaintiffs
injuries, Julie could not succeed on a claim of negligence.
2.
Fraud 123
While Julie's negligence claim may seem to have only a slight
chance of success, her fraud claim appears to be even weaker. The
plaintiffs sued for fraud, fraud by nondisclosure, and negligent misrepreactionable. 1-1 Texas Torts and Remedies § 1.04[1]. The dictionary definition specifies that
proximate cause is "[a] cause that directly produces an event and without which the event would
not have occurred." BLACK'S LAw DiCTIONARY 88 (2d. pocket ed. 2001).
117 See 1-1 Texas Torts and Remedies § 1.04[2][b].
118 Many have suggested that MySpace institute an age-verification system to help prevent
incidents similar to the one in the Solis case. See, e.g., Complaint, supra note 19, at Ex. A.
120 Another, perhaps more logical, explanation for the fact that Julie lied about her age is
simply that she wanted to have a MySpace profile, and if she would have been truthful about her
age she would have been unable to create one because the Site did not allow children under the
age of fourteen to register.
121 See Memorandum, supra note 2, at 12.
122 For a full discussion, see id, at 12-13.
123 The District Court dismissed the plaintiffs' fraud claim without prejudice for failure to
plead the claim with sufficient particularity as required by Federal Rule of Civil Procedure 9(b).
Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 852 (W.D. Tex. 2007).
482
CARDOZO PUB. LAW, POLICY & ETHICS J.
[Vol. 6:467
sentation. 1 24 To be found liable for fraud, a defendant must have caused
the plaintiff to rely on false or misleading statements or omissions, resulting in injury.125 A successful claim of fraud requires a showing that
the defendant made material representations that were false, intending
to induce action by the plaintiff, and that the plaintiff justifiably relied
on those representatiohs, causing the injury that gave rise to the suit.' 2 6
When a representation is "material" it is said to have caused the injurious result.1 27
In the Complaint, the plaintiffs insist that MySpace made "material and false express and implied representations to the public that
MySpace was safe for young underage MySpace users;"' 28 that MySpace
made these representations knowing them to be false; 129 that MySpace
made these statements with the hope and intention that users such as
the plaintiffs would rely on them; 30 and that the plaintiffs' justifiable
reliance on those statements directly and proximately caused Julie's
injuries. 131
124
For purposes of this Note, these claims will be discussed in the context of a general fraud
claim, as the differences between them have no bearing on this analysis. Cf BLACK'S LAW
DICTIONARY 292 (2d. pocket ed. 2001) (defining fraud as "[a] knowing misrepresentation of
the truth or concealment of a material fact to induce another to act to his or her detriment.");
id. at 122 (defining fraudulent concealment, a synonym for fraud by nondisclosure, as the "affirmative suppression or hiding, with the intent to deceive or defraud, of a material fact or
circumstance that one is legally... bound to reveal."); id. at 452 (defining negligent misrepresentation as "[a] careless or inadvertent false statement in circumstances where care should have
been taken."). All of these claims are similar in nature, and therefore will be discussed under the
general topic of "fraud." A more expansive analysis examining the merits of each claim separately is beyond the scope of this Note.
125 The elements of the cause of action for fraud are:
1. A material representation was made;
2. It was false;
3. When it was made, the speaker knew it was false or made it recklessly without any
knowledge of its truth and as a positive assertion;
4. The representation was made with the intention that it should be acted on by the
recipient party;
5. The recipient party acted in reliance on it; and
6. The recipient party suffered injury as a result of the reliance.
3-44 Texas Torts and Remedies § 44.02[1].
126 See id.
44
127 Id. §
.02[2][a].
128 Complaint, supra note 19, at J 59.
129
130
131
Id. at 60.
Id. at 1J 60-61.
Id. at 1J 62-63.
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483
Courts are divided as to whether to apply a "but for" test, in which
the fraud would have to be one without which the injury could not have
1 32
If
occurred, or whether to apply a regular standard of induced action.
the court in this case were to choose to apply the "but for" test, the
plaintiffs would run into problems similar to those presented by the
"but for" test of proximate cause in a negligence claim, because it is
possible that Julie would still have met with Solis had MySpace installed
the suggested security measures. 1 33 On the other hand, if the court were
to decide that a showing of induced reliance on the misrepresentations
was sufficient to show cause in a fraud claim, the plaintiffs' case would
be stronger.
While MySpace has announced improvements in their security sys134
tem
and has assured the public that the Site is becoming safer for
teens since the filing of Julie's suit, MySpace did in fact have warnings
posted on the Site before this lawsuit was initiated, alerting users to the
potential dangers of meeting strangers online and patently telling users
that "[p]eople aren't always who they say they are."' 135 MySpace also
cautioned users not to "mislead people into thinking [they are] older or
younger" than they actually are, and notified them that their profiles
would be deleted if the Site's administrators discovered that they have
done so. 1 36 Finally, MySpace makes sure to include a disclaimer, reminding users that they act at their own risk, and that the Site will not
137
take responsibility for users' online or offline conduct.
132
3-44 Texas Torts and Remedies § 44.02[2][a).
133 See discussion Part II.B.1 supra.
134
See, e.g., Hansell, MySpace to Add Restrictions, supra note 110. For example, MySpace now
requires a user who is older than eighteen to either know the first name, last name, or email
address-rather than just the user name-of a user under the age of sixteen to whom they wish
to send a friend request. Id. MySpace now also allows users to set their profiles to private, which
means that only the user's approved friends can view their profile. Id.
135 The warning continues:
...Be careful about adding strangers to your friends list. It's fun to connect with new
MySpace friends from all over the world, but avoid meeting people in person whom
you do not fully know. If you must meet someone, do it in a public place and bring a
friend or trusted adult.
Ramasastry, Should Networking Sites Be Legally Responsible, supra note 69. See generally, http://
www.myspace.com/ModuleslCommonlPages/SafetyTips.aspx, for similar warnings.
136 Ramasastry, Should Networking Sites Be Legally Responsible, supra note 69. MySpace
searches profiles for words and phrases likely to be used by underage users, and when a profile
using such phrases is discovered, it is automatically deleted. Reuters, MySpace.com To Bolster
Security Measures: CEO, TECHWEBNEWS, Mar. 3, 2006.
137 Ramasastry, Should Networking Sites Be Legally Responsible, supra note 69.
484
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[
Herein lies the difficulty of Julie's fraud claim. MySpace made
public statements about the Site's improved security, 138 in order to assure its users like Julie that the Site was safe for use so as not to lose their
business. That being the case, it is logical to assume that MySpace
wanted to induce action in reliance of these statements, that is, continued use of the website. But for the plaintiffs to prove that this reliance
caused the injury, they would have to show that Julie would not have
used MySpace had the Site not been represented to her as safe.
To establish that Julie would not have used the Site if she thought
it was not safe, the plaintiffs would have to show that MySpace's assurances held greater weight in young Julie's eyes than the warnings posted
on the Site. This assertion is difficult to make, since the complaint does
not allege that Julie knew about these public statements, though she
most probably did see the warnings posted on the website.
In light of the fact that the Site displayed numerous warnings in
users' plain sight, the plaintiffs would have difficulty supporting a claim
that MySpace falsely represented that the Site was safe from predators,
or misleadingly omitted information regarding the safety of the
website. 139
C.
The Lack of Federal Claims on the Issue
If the plaintiffs' claims of negligence and fraud seem to be so weak,
one may wonder why they chose to follow that route in the first place.
MySpace is a corporation that does business in all fifty states, and federal
courts have heard Internet cases in the past.1 40 The question of why
Julie did not sue under federal law overshadows the entire case. The
answer probably lies in the fact that Julie has virtually no recourse under
federal law. The Children's Online Privacy Protection Act of 1998
("COPPA")14 ' requires websites that target users under the age of thirteen 142 to obtain verifiable parental consent before allowing children to
use the sites, which typically comes in the form of a request for a valid
138
See, e.g., Hansell, MySpace to Add Restrictions,supra note 110 (announcing that users over
18 will not be able to access profiles of users ages 14 and 15 unless they already know them);
Julia Angwin & Brian Steinberg, News Corp. Goal: Make MySpace Safer for Teens, WALL ST. J.,
Feb. 17, 2006, at B1 (MySpace plans to hire a known "safety czar" to oversee safety on the Site).
139 Brief of Appellee, supra note 4, at 9-10; see Ramasastry, Should Networking Sites be Legally
Responsible, supra note 69; see generally http://www.myspace.com/.
140 See e.g. A & M Records, Inc. v. Napster, Inc., 114 F. Supp.2d 896 (N.D. Cal. 2000).
141
142
15 U.S.C. § 6501 et seq.
The Act specifically defines "child" as an individual under the age of 13. Id. at § 650 1(1).
2008]
credit card number, a process similar to some of the suggestions made to
MySpace. 14 3 COPPA prohibits website operators from soliciting information from children, and from displaying or disclosing information
from children collected on the website without verifiable parental consent. 144 MySpace, however, does not allow people under fourteen to
access the Site at all, so COPPA does not apply to this case. 145 Although
Julie was only thirteen when she created her profile,14 6 COPPA would
probably still not apply, as the incident that gave rise to the suit hap4 7
pened when she was already fourteen.'
Current federal law protects web intermediaries like MySpace, not
teens like Julie,' 48 and the district court affirmed this view. 149 In addition, federal law seems to protect website operators from the negative
effects of user-posted content. 50 The Communications Decency Act of
1996151 ("CDA") states that "[n]o 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."' 1 52 The
plaintiffs argued 153 that the CDA is inapplicable in this case because its
purpose is to protect free speech and that it does not apply to website
operators who "knowingly provid[e] a dangerous environment." 154 Yet
that contention is inapposite; application of the CDA would not lead to
143
Id; see also supra Part II.B. 1. Other social networking websites, such as Second Life, have
started testing similar age verification systems. Age and Identity Verification in Second Life, http://
blog.secondlife.com/2007/05/04/age-and-indentity-verification-in-second-life/ (May 4, 2007).
144 15 U.S.C. § 6502.
145
Julie created her MySpace account when she was only thirteen. Because MySpace has no
way of verifying users' ages, she said she was fourteen when she opened the account, which is
why Solis believed she was fifteen at the time of the assault. Complaint, supra note 19, at 1 30.
146
147
Id. at 30.
Id. at 1 31.
148 See generally, Ramasastry, Should Networking Sites Be Legally Responsible, supra note 69
(arguing that Congress's attempt to protect children from online dangers, the Children's Online
Privacy Protection Act, 15 U.S.C. § 6501 et seq., only protects children under the age of thirteen. As such, Julie is too old to benefit from it.).
149 Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 846-50 (W.D. Tex. 2007).
150 See, e.g., The Communications Decency Act of 1996, 47 U.S.C. §§ 230 et seq.
151 Id. The district court actually dismissed the plaintiffs' claims, saying MySpace is immune
under the CDA. See MySpace, 474 F. Supp. 2d 843 (W.D. Tex. 2007). The arguments for and
against application of the CDA on appeal are set forth infra, Part IV.
152
47 U.S.C. § 230(c)(1).
153 See infra Part IV for a more in-depth discussion of the arguments on the applicability of
the CDA.
154 Memorandum, supra note 2, at 2.
486
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[
MySpace's liability anyway, as seen in the district court's decision. 155
Members of Congress have expressly stated that Congress has a policy of
protecting website operators in order to promote continued development of Internet technology and thereby help boost American
businesses. 156
To that end, Congress proposed a bill, introduced in the House on
May 9, 2006, the Deleting Online Predators Act (the "Act"), which
would require elementary and secondary schools, along with public libraries that have computers with Internet access, to have Internet security programs in place if they wish to receive discounted Internet
services.15 7 The Act specifies that programs must monitor students' online activities and install software or firewalls that prevent students from
accessing websites with visual depictions of obscenity, child pornography, or other content that is harmful to minors. 158 The Act would allow administrators to disable the firewalls for use by an adult for "bona
fide research or other lawful purposes." 159 Provisions such as these suggest that Congress prefers to place the burden of protecting children
from harmful Internet content on educators rather than website
operators. 6 0
155
MySpace, 474 F. Supp. 2d at 846-50.
156
47 U.S.C. § 230(b)(1)-(2) states:
(b) Policy. It is the policy of the United States(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) 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.
The district court also recognized that
impos[ing] a duty under these circumstances for MySpace to confirm or determine
the age of each applicant, with liability resulting from negligence in performing or not
performing that duty, would of course stop MySpace's business in its tracks and close
this avenue of communication, which Congress in its wisdom has decided to protect.
MySpace, 474 F. Supp. 2d at 851.
157 H.R. 5319, 109th Cong. (2006).
159
Id. § 2(a).
47 U.S.C. 254(h)(6)(D).
160
The bill was not passed into law at the time of this writing, but it was reintroduced in the
158
House on February 16, 2007. H.R. 1120, 110th Cong. (2007).
2008]
III.
CONGRESS'S ATTEMPT To PREVENT
PREDATORY SITUATIONS: DOPA
A.
The Basic Provisions of the Bill
Congress's efforts to combat problems similar to the events leading
up to Julie's case resulted in the proposed Deleting Online Predators Act
of 2006, known as "DOPA."'16 ' DOPA was introduced in the House of
Representatives on May 9, 2006 by Rep. Michael G. Fitzpatrick (RPA), 162 and reintroduced, again in the House, on February 16, 2007, by
Rep. Mark Kirk (R-IL).1 6 3 DOPA aims at expanding parts of the Communications Act of 1934164 to "require recipients of universal service
support for schools and libraries to protect minors from commercial
social networking websites and chat rooms."' 6 5 DOPA would amend
the part of the Communications Act' 66 that establishes a mandatory
general Internet security system as a prerequisite for schools wishing to
obtain discounted Internet services to specifically block social networking sites and chat rooms that pose harm to children. 67 DOPA would
also require the Federal Communications Commission to establish an
advisory board that would monitor websites and annually publish a list
of social networking sites and chat rooms that allow sexual predators to
contact children or access the personal information of children. 168 The
implication is that, in order to continue receipt of federal funds, schools
and libraries must block all websites placed on this list.
Although DOPA does not explicitly state that it was proposed in
response to incidents of predation, it does specifically target social
networking websites and chat rooms by calling for enforcement of policies that monitor Internet activity of minors to prevent access to sites
that may lead to "unlawful sexual advances, unlawful requests for sexual
favors, or repeated offensive comments of a sexual nature from
1 69
adults.'
161 H.R. 5319, 109th Cong. (2006).
162 Id.
163
164
165
166
H.R. 1120, 110th Cong. (2007).
47 U.S.C. §§ 151 et seq.
H.R. 5319, 109th Cong. (2006).
47 U.S.C. § 254(h). See Part IIC, supra, for discussion of the statute as it is currently
written.
167 47 U.S.C. § 254(h)(5)(B)(i).
168 H.R. 5319, 109th Cong. § 2(e), (0 (2006).
169 Id. § 2(a)(i)(II)(bb).
488
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The provisions of the Act significantly expand the Communications Act to provide greater protections to minors with Internet access. 170 The current version of the CDA 17 ' already requires schools and
libraries to prevent minors from accessing websites with "visual depictions that are-(I) obscene; (II) child pornography; or (III) harmful to
minors." 172 DOPA will add restrictions that extend the prohibitions to
include commercial social networking sites or chat rooms that can lead
to harm to minors beyond what can be considered "visual depictions,"
including "unlawful sexual advances .. .requests for sexual favors," and
so on.' 73 DOPA allows for the restrictions to be disabled for use by an
adult or a minor under the supervision of an adult for educational
74
purposes. 1
The current statute's definition of "harmful to minors" includes
175
sexual or explicit content, but only in the form of "visual depictions."
DOPA would add commercial social networking websites to the list of
definitions as "a commercially operated Internet website that-(i) allows
users to create web pages or profiles that provide information about
themselves and are available to other users; and (ii) offers a mechanism
for communication with other users, such as a forum, chat room, email,
or instant messenger."' 176 This definition precisely describes most of the
functions of MySpace.
B.
Why DOPA Will Not Solve the Problem
Unlike the statutes that were in force during the time Julie Doe
filed her suit against MySpace, the provisions of DOPA apply to anyone
The relevant provisions appear in 47 U.S.C. § 254(h). This subsection is entitled "Telecommunications services for certain providers." Id.
171 Id. § 254(h)(5)(B) and (6)(B).
172 Id. § 254(h)(5)(B)(i).
173 H.R. 5319, 109th Cong. § 2(a) (2006).
174 Id. § 2(d).
175 47 U.S.C. § 254(h)(7)(G) provides:
170
The term "harmful to minors" means any picture, image, graphic image file, or other
visual depiction thattaken as a whole and with respect to minors, appeals to a prurient interest in nudity,
sex, or excretion;
depicts, describes, or represents, in a patently offensive way with respect to what is
suitable for minors, an actual or simulated sexual act or sexual contact, actual or
simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and
taken as a whole, lacks serious literary, artistic, political, or scientific value as to
176
minors.
H.R. 5319, 109th Cong. § 2(c) (2006).
20081
489
under the age of seventeen, 77 which would seem to preempt future
cases similar to Julie's. 178 In reality, the only future effect DOPA may
have on cases involving predators is to grant certain future victims recourse under federal law to sue schools or public libraries, both of which
are publicly controlled. While DOPA prevents children from accessing
the "blacklisted" websites at school or in the library; there is no other
federal law that protects or blocks minors from these sites at all times, or
in all settings. Most minors would still be able to access websites like
MySpace from home, friends' houses, or even on their cellular
phones. 179 Prohibiting children from accessing these sites at school or in
the library would not be likely to forestall potentially predatory situations; it would only postpone them until children got home. Some believe that banning trendy sites like MySpace from schools or libraries
may only increase teens' attraction to these websites. 180 Children and
teenagers who meet strangers through networking sites using cell phones
or home computers remain limited to tort claims similar to those Julie
filed against Solis and MySpace, and cannot take advantage of
18 1
DOPA.
The burden placed on the adults using these computers is further
evidence of Congress's strong belief in-and preference for-the policy
of unimpeded technological development.'
By specifying that the
protections set up can be disabled for adults only for "bona fide research
or other lawful purposes,"' 183 Congress has placed restrictions on the
ability of administrators and faculty to maintain their privacy by potentially requiring them to disclose their purpose for wanting the securities
177 47 U.S.C. § 254(h)(7)(D) defines "minor" for purposes of this subsection as "any indi-
vidual who has not attained the age of 17 years."
178
The Complaint is silent as to whether Julie accessed MySpace from a school/library or
home computer, but this distinction is irrelevant. She would be unable to apply DOPA retroactively unless the Act specifically provided for retroactive application, which it does not. It should
be noted that "none of the reported MySpace incidents have been linked to school or library
computers." Anita Ramasastry, Why the Delete Online Predators Act Won 't Delete Predatory Behavior: Requiring Librariesand Schools to Block Access to Sites like MySpace.com and FaceBook.corn
Isn't the Best Option To Solve the Problem, FINDLAw.CoM, Aug. 7, 2006, http://writ.news.find
law.com/ramasastry/20060807.html (hereinafter Ramasastry, Why DOPA Won't Delete
Predators).
179 MySpace now allows users to access their pages on their cellular phones. See http://
www.myspace.com/myspacemobilecingular.
18o Ramasastry, Why DOPA Won't Delete Predators, supra note 178.
181 See Complaint, supra note 19, at
80-90.
182 See 47 U.S.C. § 230(b)(1)-(2).
183 Id. § 254(h)(5)(D).
490
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disabled, so that the administrator who receives the request can evaluate
and determine whether it is in fact a "lawful purpose." 184 The fact that
Congress is willing to subject the adults who have access to school and
library computers to such scrutiny and supervision, instead of simply
restricting websites that are aimed at or are attractive to minors from
displaying harmful content, demonstrates Congress's strong desire to allow Internet technology to continue on its course of development unabated by governmental regulations.' 8 5 Congress has effectively chosen
to inconvenience the adults using these computers over regulating the
content of websites frequented by minors. By choosing to disturb
adults' use of computers in public libraries, rather than passing laws
against the creation, operation, or maintenance of websites that have
content that may be harmful to children (or from requiring age verification procedures as suggested by various state attorneys general' 86 ) Congress has shown that it prefers to leave technology to develop on its own
course, unimpeded by external controls, even at the expense of inconveniencing others.
In an attempt to balance the economic benefits of unabated technological development and the public interest in protecting children
from the perils of online communication, Congress has come out on the
side of the market, though perhaps inadvertently. Consequently,
DOPA would essentially do nothing for girls like Julie in the future.
Children who are unaware of the dangers of meeting people online, and
are not educated about the great risks of meeting strangers in person,
even if they "know" each other from MySpace, are still in jeopardy.
It seems that Congress has yet to find a sufficient way to protect
children from the potential dangers of online social networking. Professor Anita Ramasastry of the University of Washington 8 7 urges the government to "focus [its] resources, instead, on catching predators,"' 8 8 and
feels that "parents and teachers need to realize that the dangers lurking
184 See
id.
185
See id. § 230(b)(1)-(2).
186
See supra Part II.B.
Professor Ramasastry has been teaching at the University of Washington School of Law in
187
Seattle since 1996. Among others, she teaches a course titled Electronic Commerce and Information Technology. She is also the director of the University's SHIDLER CENTER FOR LAW,
COMMERCE & TECHNOLOGY. In 2001, she was a fellow at the Berkman Center for Internet &
Society at Harvard Law School. UW School of Law, http://www.law.washington.edu/Direc-
tory/Profile.aspx?ID= 102.
188 Ramasastry, Why DOPA Won't Delete Predators, supra note 178.
20081
in cyberspace are also dangers that exist offline, and to educate children
accordingly."' 8 9 Indeed, the most rational solution to finding a way to
protect children from online dangers is to provide proper education:
Kids need to know that it's
online "friend" who says he's
if the "kid" turns out to be
And predators need to know
are good that they will meet
never safe to meet a stranger-even an
a kid-except in a public place, and that
an adult, they may be in grave danger.
that if they troll for victims, the chances
up with the police or FBI instead.' 9°
Children need to be educated in how to judiciously approach uncertain
and potentially dangerous situations and scenarios that they may encounter online, and to be especially cautious of people they have not
met.
The drafters of DOPA-who may not have realized that the Act, if
enacted, has virtually no deterrence power-recognized the need for
public education. Therefore, Section 3 of DOPA includes what is in
effect a public education requirement. Specifically, Section 3 requires
the Federal Trade Commission to issue consumer alerts about the dangers of certain online activities within ninety days of the Act's enactment.' 91 The purpose of these alerts is to inform the public about the
"potential dangers to children of Internet child predators, including the
potential danger of commercial social networking websites . . .through
which personal information about child users [become publicly available]. '"'9 2 Section 3 also calls for the creation of a website that would
serve as a resource for parents, teachers, and others, providing informa1 93
tion about the perils of online networking.
IV.
DECISION, APPEAL AND THE
A.
CDA
ARGUMENTS
The District Court Decision
The district court dismissed the Does' claims under the Communications Decency Act of 1996 ("CDA"),' 94 which protects Internet service providers from publisher liability. Prior cases interpreting the CDA
have stated:
189 Id.
190
Id.
109 H.R. 5319 § 3(a).
Id. § 3 (a)(1).
193 Id. . 3 (a)(2).
194 47 U.S.C. § 230 et. seq.
'91
192
492
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Specifically, § 230 precludes courts from entertaining claims that
would place a computer service provider in a publisher's role. Thus,
lawsuits seeking to hold a service provider liable for its exercise of a
publisher's traditional editorial functions-such as deciding whether
to publish, withdraw, postpone or alter content-are barred.' 95
Thus, the court held that MySpace could not be sued for failing to edit
or verify the information posted on Solis's page. "The CDA thus encourages web sites and other 'interactive computer services' to create
forums for people to exchange their thoughts and ideas by protecting
web sites and interactive computer services from potential liability for
each message republished by their services."' 96 Judge Sparks stated that
the Congressional purpose in enacting the CDA was to protect free
speech,197 and therefore ICSs like MySpace were not required to implement safety measures to protect younger users from sexual predators.' 98
Judge Sparks further found that plaintiffs' negligence claims failed
because MySpace, having no special relationship with Julie, did not owe
Julie a duty to prevent criminal actions of third parties,' 99 and
[a]ccordingly, the Court [found] Plaintiffs .. . failed to state a claim
for negligence or gross negligence because MySpace had no duty to
protect Julie Doe from Pete Solis's criminal acts nor to institute reasonable safety measures on its website. If anyone had a duty to protect
Julie Doe, it was her parents, not MySpace.2 ° °
The plaintiffs' negligence and gross negligence claims were therefore dismissed by the court with prejudice. 2 ° '
195 Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), quoted in Green v.
America Online, 318 F.3d 465, 471 (3d Cir. 2003).
196 Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 847 (W.D. Tex. 2007).
197 Id. at 848 (citing Zeran, 129 F.3d at 330) ("[T]he CDA necessarily protects interactive
computer services from liability even after they are notified of an allegedly defamatory or threatening post because the insupportable legal burden imposed by potential tort liability would
undermine the CDA's goal of promoting speech on the Internet.").
198 Id. at 849 (refusing to limit the application of the CDA to defamation cases and citing
other cases where the CDA was applied to preclude claims against Internet Service Providers not
involving defamation).
199 Id. at 850-51.
200 Id at 852.
201 Id. at 852. The court also dismissed the plaintiffs' fraud and negligence misrepresentation
claims without prejudice, because these claims did not meet the heightened pleading standard
required by FED. R. Civ. P. 9(b). Id.
2008]
B.
493
The Arguments on Appeal 20 2
1. Appellants' Brief
In their appellate brief,20 3 the plaintiffs-appellants reiterate their
position that the CDA does not apply in this case, and that the district
court gave it an overbroad sweep by applying it to preclude their claims
against MySpace. 2 °4 It seems that appellants were attempting to argue
that the scope of the CDA should be limited specifically to the particular problem with which it was intended to deal, and not extended to
other situations, even if those situations fall within the purview of the
statutory language. However, the fact that an act is promulgated to
address a specific problem, or with a specific purpose in mind, does not
bar extension of that act to solve other issues that fall within the statutory language. Appellants, by arguing that there can only be a narrow
construction of the CDA, ignore the important and often-employed judicial function of applying a statute to new circumstances that may
arise, particularly in areas of new technologies.
The plaintiffs-appellants insist that Judge Sparks's broad interpretation of the CDA's applicability will later be erroneously interpreted as a
"blanket immunity" for Internet companies in all tort claims:
This Court should not endorse and adopt the district court's erroneous reading into the CDA of an overly broad blanket immunity to tort
suits that concern a failure to take reasonable steps to prevent the foreseeable sexual assault of minors that is unsupported by the express
language of the CDA, cases interpreting the CDA's provisions, or the
policies and legislative history behind those provisions. 2 °5
The basis of their argument is that the CDA, in its plain terms, was
only intended to affect those websites acting as publishers. Since the
cause of action pleaded against MySpace does not charge the Site as a
publisher, Section 230 is inapposite. Appellants assert that MySpace's
failure to enact safety measures is a claim in tort, and therefore the CDA
202
The issues discussed in the appellate briefs go much deeper than it may appear from this
short summary. A full explanation of all the arguments presented, while interesting and
important, is beyond the scope of this Note.
203 At the time of this writing, a date has not been set for oral argument, although it is
expected to take place in late Spring 2008. Telephone Interview with Christopher Popov, supra
note 81.
204 Brief of Appellant, supra note 106, at 18.
205 Id. at 18.
494
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[
is inapplicable to their claim. They further assert that the theory of
premises liability should apply. Under premises liability, the owner of
property is "duty-bound to protect others from the foreseeable criminal
acts of a third party that result from the owner's negligence . . 206
However, even if the Fifth Circuit accepts this argument, the plaintiffs
would still ultimately lose their case against MySpace. Finding that
MySpace is liable for the criminal acts of third parties that occur on the
Site will not affect Julie's case, as no criminal act took place on MySpace's "premises." Lying about one's age is not a criminal act, nor is it a
crime for adults to communicate with minors. The criminal conduct in
question-Solis's sexual contact with a minor-took place in the physical world, not in the online one.
The plaintiffs further argue that MySpace is not immune under
Section 230(c)(1) because it acted as an information content provider
with respect to the content that led to Julie's injury. By MySpace's setting up the fields that make up a profile, and thus controlling what
information is included on a user's page,20 7 plaintiffs assert that MySpace served as an information content provider. 2°8 The plaintiffs cite to
a recent Ninth Circuit case that held that "if the interactive computer
service provider 'is responsible, in whole or in part, for creating or developing the information,' then 'it becomes a content provider and is not
entitled to CDA immunity.' "209
Interestingly, after asserting that MySpace was an information content provider that provided information that harmed Julie, the plaintiffs
then argue that "the Does' claims do not premise liability on MySpace's
role as a publisher, because the harm to Julie was ... proximately caused
by MySpace.com's lax security measures, not the content of any commu206 Id. at 19.
207
MySpace effectuates this control by asking its users a series of questions. Each answer
leads to a new set of questions that appears as a result of the answer to the prior question, and so
on. See id.at 40-41.
208
This argument is without merit. A simple reading of the plaintiffs' brief leads this author
to conclude that the plaintiffs' counsel were grasping at straws: "As was the case with Roommates.com in FairHousing, MySpace acted as a content provider when it collaborated with Julie
Doe and her eventual attacker, Solis, to create and then flesh out their MySpace profiles." Id. at
40. The defendants filed a letter informing the court that the Rommates.com decision had been
vacated due to the 9th Circuit's decision to rehear it en banc. E-mail from Christopher Popov,
Vinson & Elkins, LLP (Austin, TX), Attorney for Defendants, to Author (Oct. 23, 2007, 11:50
EST) (on file with author).
209 Brief of Appellant, supra note 106, at 38 (quoting Fair Housing Council v. Roommates.com, Nos. 04-56916, 04-57173, 2007 WL 1412650 (9th Cir. May 15, 2007)) (emphasis
in original). See also 47 U.S.C. § 230(f)(3).
20081
495
nications. ''2 10 But, as mentioned above,2 1 1 all MySpace could have done
was require Solis to tell the truth about his age and delete his account if
he did not comply. Preventing Solis from lying would not necessarily
have stopped him from contacting Julie, nor is there any evidence that
Julie would not have spoken to him nor met with him had she known
he was a year older.
The plaintiffs restate their arguments when they later argue against
the district court's conclusion that MySpace did not owe Julie a duty to
implement safety measures, saying:
A duty of reasonable care exists when in general, reasonable men
would recognize it and agree that it exists. Among the duties recognized under Texas law, is the duty that landowners and businesses owe
to their invitees and customers to protect them from the criminal acts
of third parties, particularly when they have in whole or in part created the circumstances that lead to the criminal conduct.2 12
The plaintiffs argue that premises liability should be applied to
MySpace in this context as well, implying that if the court disagrees, it
will turn the Internet into a "virtually lawless environment" where businesses are not held responsible for any of the harms they cause to their
2 13
customers or users.
2.
Respondent's Brief"1 4
MySpace attempts to refute the Does' argument that its safety measures were insufficient by saying that such argument is contrary to the
purpose of the CDA. Section 230(b) of the Communications Decency
210
211
212
213
214
Brief of Appellant, supra note 106, at 42.
See discussion on proximate cause, supra Part II.B.1.
Brief of Appellant, supra note 106, at 48 (internal citations omitted).
See id. at 49.
The Internet Commerce Coalition (ICC), a trade association whose goal is to "achieve a
legal environment that allows service providers, their customers, and other users to do business
on the Internet under reasonable rules governing liability and the use of technology," filed an
amicus brief. Brief for Internet Commerce Coalition, et al. as Amici Curiae Supporting
Appellees, Doe v. MySpace Inc., No. 07-50345, 1 (5th Cir. 2007) (No. 07-50345) (similarly
interested organizations filed an amicus brief in support of defendants' position). The amici
echoed the defendants' arguments that MySpace only acted as publisher and not as an
Information Content Provider, that a finding for the plaintiffs would thus defeat the purposes of
the CDA-to encourage and promote vibrant online speech and to encourage voluntary selfregulation. See generally id.
496
CARDOZO PUB. LAW, POLICY & ETHICS J.
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Act sets forth Congress's reasons for wishing to minimize government
regulation of the Internet:
(1) to promote the continued development of the Internet and other
interactive computer services and other interactive media;
(2) 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;
(3) to encourage the development of technologies which maximize
user control over what information is received by individuals, families,
and schools who use the Internet and other interactive computer
services;
(4) to remove disincentives for the development and utilization of
blocking and filtering technologies that empower parents to restrict
their children's access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter
and punish trafficking in obscenity, stalking, and harassment by
2 15
means of computer.
The CDA was enacted, in part, to protect websites that established
monitoring systems. Congress feared that, if websites were liable for
inadequate safety measures, the sites would be disincentivized from
monitoring activities on their sites at all.26 MySpace noted that other
2 17
courts have accepted this reasoning.
In response to the plaintiffs' assertion that MySpace acted as an
Information Content Provider ("ICP") in helping Julie and Solis create
their profiles, the defendants insist that MySpace acted only as an ICS,
because it merely published the content submitted by Julie and Solis;
§ 230(b) (2006).
Brief of the Appellee, supra note 4, at 20-2 1; see 47 U.S.C. § 230(b)(4) (2006).
217 For example, the appellees cited Carafano v. Metrosplash.com, Inc., a Ninth Circuit case
involving a false online personal advertisement posted on Matchmaker.com by an unidentified
third party, implying that actress Christine Carafano was sexually promiscuous:
The Ninth Circuit thus recognized that, notwithstanding the serious potential for the
publication of harmful content online, imposing a duty to ensure that all postings are
"safe" or otherwise problem-free would threaten the viability of interactive computer
services and thereby reduce the channels of communication available on the Internet.
Brief of the Appellee, supra note 4, at 22 (internal citations omitted); see generally Carafano v.
Metrosplash.com, Inc., 339 F.3d 1119 (9th Cit. 2003).
215 47 U.S.C.
216
2008]
the profiles were not filled out by MySpace, and thus they consisted of
third party content only. 2t 8 In essence, the defendants argue that the
plaintiffs' claim is that MySpace did not verify Solis's identity and therefore allowed him to "publish" false information on his page. This argument is an attack on MySpace's editorial processes. "Alleging that a
website is liable for failing to prevent a third party from posting a communication online is just another way of alleging that the website is
liable for publishing the third party's communication. Courts have appropriately rejected similar claims as thinly-veiled attempts to plead
2 19
around the CDA.
The defendants-respondents then point out that there are no allegations in the record that MySpace acted as an ICP in creating the
profiles of Julie and Solis, and then urge that the plaintiffs waived this
argument by not bringing it up in the lower court.2 20 Even so, the
defendants insist that MySpace's questionnaire profiling does not make
it an ICP: "[w]ith virtual unanimity, however, courts have rejected the
notion that websites become information content providers merely by
providing structure to their sites through online questionnaires and
search features. ' 22 1 Similarly, "the critical information about Doe that
led to her in-person meeting with Solis-namely her profile and the
personal information that she provided directly to Solis-was posted by
Doe and MySpace did not play a role in creating that content. "222
Next, the defendants-respondents refer to a number of cases in
support of the district court's holding that MySpace owed no duty to
Julie to protect her from criminal acts of third parties.2 23 More importantly, other recent cases have already relied on Judge Sparks' decision.124 For example, a California case, brought by five girls who were
sexually assaulted by men they met on MySpace and with facts similar
to those in Julie's case, was dismissed by the California Superior Court,
22 5
applying Judge Sparks' decision.
220
Brief of the Appellee, supra note 4, at 26-27.
Id. at 28.
Id. at 17.
221
Id. at 33 (citing Carafano, 339 F.3d at 1124, rejecting a similar argument, stating that
218
219
such online profiles have no content unless a user inputs it).
222
Id. at 35.
223
See, e.g., Carafano, 339 F.3d 1119; Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir.
1997); Prickett v. InfoUSA, Inc., 2006 WL 887431 (E.D.Tex. 2006).
224 Brief of the Appellee, supra note 4, at 25.
225 Id. (citing Doe II v. MySpace, Inc., No. SC092421 (Cal. Super. Ct., L.A. County, Aug.
16, 2007)).
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CARDOZO PUB. LAW, POLICY & ETHICSJ.
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The defendants-respondents' defense against the plaintiffs' cyberpremises liability argument suggests that to add such a principle to Texas
law is impractical given the sheer amount of users MySpace would have
to monitor under this duty:
Remarkably, Appellant suggests that this Court could create a new
common law duty, based on a crude and inapt analogy, where the
rules of premises liability that would govern in a dim warehouse expo,
with inadequate security where children are molested in the unlit hallways, would be applied in cyberspace. Obviously, an interactive cyberspace site with 100 million users posting artistic, social, and political
speech bears no resemblance to a warehouse where security problems
22 6
could be solved by hiring a few guards and buying some light bulbs.
Instead, the defendants-respondents suggest the court draw analogies from the duties of other communications service providers, such as
telephone networks, in deciding whether a duty to protect Julie existed.2 2 7 After a brief review of the relevant cases, the defendants conclude that no duty was found amongst these service providers to prevent
people who use their services from using them in a way that would be
harmful to others. 2 8 Further, the defendants assert that even if a standard premises liability theory would apply, MySpace would have no
duty to protect against crimes that occur off its premises, even if contact
was initiated on its premises. 229 A premises liability theory would fail in
the context of the Internet, as it is based on the notion that a property
23 °
owner has control over those who are physically present on his lot.
Users do not have any physical presence on MySpace. That fact, especially when considered in light of the amount of users MySpace has (100
million), 231 makes a premises liability theory impracticable if applied to
the Internet, particularly if it would extend to acts committed off the
website, as the plaintiffs are asserting in this case.23 2
227
Id. at 45 (citing Brief of Appellant, supra note 4, at 20).
Id.
228
Id. at 50.
226
Id. at 53, n.1 4 8 (citing decisions that premises liability does not extend to criminal acts of
third parties committed off the premises).
230 Id. at 53.
231 See id. at 45.
232 See id. at 53-54.
229
20081
3.
Reply Brief of Appellant
The plaintiffs-appellants filed a Reply Brief, reiterating that CDA
immunity is not applicable in this case:
[T]he only claims that are preempted are those that must, in order to
impose liability, "treat[ ]" a qualifying defendant as if it were the
"publisher or speaker" of "information provided by another." Conversely, any cause of action that is consistent with §230 is not preempted, and "[n]othing in . . . [§230] shall be construed to prevent
any State from enforcing" a cause of action consistent with §230's
prohibition against treating a defendant as a publisher.2 33
The plaintiffs argue that only claims that strictly and directly conflict with § 230 are preempted, and that because their claims are not in
direct conflict with § 230, the presumption that federal law does not
preempt state law on issues normally dealt with in the state arena was
2 34
not overcome, and CDA immunity thus does not apply.
Plaintiffs urge that even if the court were to conclude that MySpace merely distributed the information provided by Julie and Solis, the
cases cited by the defendants all included distributor liability as "merely
a subset, or a species, of [traditional] publisher liability. '23 5 Plaintiffs
insist that such a construction of § 230 is overbroad and has no basis in
the statute's text. 236 "These supposed constructions of § 230(c)(1),
however, are based on no more than the CDA's precatory statements of
purpose and loosely worded dicta in opinions that did not engage the
text of the statute either. ' 237 The plaintiffs then proceed to argue that
CDA immunity is only applicable to cases involving traditional publisher liability, and if distributor liability is "a subset" of publisher liability, it is a step removed, and therefore the CDA is of no consequence to
the instant case. 238
The flaws in this logic are obvious. Firstly, categorizing one thing
as a subset of another supports the proposition that it should be treated
similarly to other things in its parent category, not that the subset is too
233
Reply Brief of the Appellant, Doe v. MySpace Inc., No. 07-50345 (5th Cir. Oct. 16,
2007) at 4 (internal citations omitted); see 47 U.S.C. § 230(e)(3).
234 See Reply Brief of the Appellant, supra note 233, at 3.
235 Id. at 5 (citing Zeran v. America Online, Inc., 129 F.3d 327, 332 (4th Cir. 1997)).
236
Id. at 5-6.
237
Id. at 6.
238
Id. at 6-7.
500
[
[Vol.
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different from the parent category and therefore requires different treatment in the form of an entirely new examination. Second, the plaintiffs
argue that the only cited cases that support the defendants' claim that
MySpace qualifies for CDA immunity do so only through dicta and do
not cite to any additional authority supporting the position. It seems
that the plaintiffs would have been better off arguing that the defendants were not publishers or distributors at all.
The plaintiffs falter again in their Reply Brief, when they say that
"MySpace and its amici seem to believe that the CDA was passed to
broadly protect internet companies from the harm they cause. '2 39 This
position is patently false; even a superficial reading of the Respondents'
Brief shows that MySpace does not argue that they should not be held
liable for harm they cause, but rather, they simply argue that they did
not cause the harm to Julie. This blunder is perhaps a result of hurried
drafting.
One of the more logical arguments set forth by the plaintiffs in
their Reply Brief is that they did not waive the argument that MySpace
was an Information Content Provider ("ICP"), rather than a publisher
or distributor, by not raising it in the district court. The plaintiffs explain that when the district court held that MySpace was immune under
the CDA, it necessarily held that it was not an ICP, as ICPs are not
immune; thus, the issue was included in the scope of the ruling, and so
it is a proper issue on appeal.2 4 °
Finally, the plaintiffs attempt to revive their cyber-premises liability
argument by saying that even the cases that find there is no duty to
prevent off-premises harms do not limit the premises-liability duty to
incidents that occur on the premises. 241 The plaintiffs insist that premises owners are liable for criminal acts of third parties if they were reasonably foreseeable: "[u]sually, the criminal conduct of a third party is a
superseding cause relieving the negligent actor from liability. However,
the tortfeasor's negligence will not be excused where the criminal conduct is a foreseeable result of such negligence. "242 Thus, the plaintiffs
argue that Solis' assault of Julie was reasonably foreseeable given the
string of similar situations that MySpace had reason to know about.
239
Id. at 13.
240
See Reply Brief of the Appellant, supra note 233, at 17-18.
Id. at 24.
Id. at 25 (quoting Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 550 (Tex. 1985)).
241
242
20081
C.
The Focus on the CDA Arguments Sidesteps the Real Issue
While the defendants understandably have an interest in disposing
of the case as early as possible, centering the case on the CDA circumvents the real issues involved. This case is not about publisher (or distributor) liability. It is not about safety on the Internet. It is not about
age or identity verification. It is not even about sexual predation. At its
core, this case asks whether MySpace should be held liable for enabling
Pete Solis to assault Julie Doe. In other words, this case asks whether
websites should be held vicariously liable for criminal acts they may have
facilitated.
More than the publisher liability cases, this case closely resembles
the other Internet liability cases, namely those in the line of cases beginning with Sony Corporation of America v. Universal City Studios24 3 and
ending recently with Metro-Goldwyn-Mayer Studios v. Grokster.2 44 The
plaintiffs are not claiming that the wrong done was MySpace's publishing of the information, nor that MySpace did not prevent Solis from
lying about his age; rather, the Does accuse MySpace of creating a
means to allow sexual predators to locate their victims. 245 Solis was
nineteen years old, and represented himself as an eighteen-year-old.2 4 6
The facts do not allege that this misrepresentation is what caused the
assault. As mentioned above, there is no reason to believe that Julie
would not have befriended and eventually met Solis had she known that
he was actually one year older than she believed, and the record does not
support such an assertion. The plaintiffs' claim, in its most basic form,
is that the MySpace website itself encourages sexual predators to find
and assault victims, and that the defendants supplied the means for the
illegal ends. 4 7 Similarly, the argument in Sony was that its product, the
243
244
245
246
247
464 U.S. 417 (1984).
545 U.S. 913 (2005).
See Complaint, supra note 19.
Ramasastry, supra note 69; see also Complaint, supra note 19, at 15 31-32.
The plaintiffs bring up a hypothetical to make their point:
Imagine an internet website called "CrimeSpace," designed as a social-networking
website and virtual meeting place for criminals. The website is designed to provide a
cyberpremises in which criminals can meet, exchange ideas, form conspiracies, and
plan future crimes. Now imagine that two child predators meet on CrimeSpace by
locating one another using CrimeSpace's database of detailed profiles, which contain a
variety of searchable parameters. The predators make contact with each other on
CrimeSpace, communicate with one another, plan their next attack, and subsequently
attack their victim. Traditional tort theories would surely create liability against the
website that is not grounded merely in acts of publishing, but, according to MySpace,
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Betamax, encouraged copyright infringement by virtue of its recording
functions. 24 8 The argument in Grokster was that the Grokster and
Streamcast softwares encouraged and facilitated infringement as a vehicle for downloading copyrighted songs.24 9 Yet, the defendants in Sony
and Grokster had different fates. The Sony Betamax was found to have
legal purposes other than copyright infringement and was therefore not
held vicariously liable. 250 Grokster and Streamcast softwares were found
not to have such permissible uses and was therefore held liable for facilitating infringement. 5 Thus, considering which of these cases MySpace
more closely resembles is illuminating in determining whether the court
should hold MySpace liable for the illegal activities of third parties using
its website.
V.
MYSPACE'S LIABILITY AFTER GROKSTER
The 2005 landmark decision in MGM v. Grokster 52 is the most
recent in a line of Supreme Court cases that began in 1984 with Sony
Corporation ofAmerica v. Universal City Studios, Inc. 25 3 These cases address an issue similar to the one MySpace is facing now: whether providers of products or services can be held contributorily liable for the illegal
acts committed by third parties using those services. 254 Both Sony and
Grokster limit the scope of the issue to the facilitation of copyright infringements,25 5 leaving open the question of whether the same rule
Congress intended that CrimeSpace could not be held liable in tort for its reckless role
in the attack, because that attack was causally linked to the publication of information
on CrimeSpace.
Reply Brief of the Appellant, supra note 233, at 8. The plaintiffs use this hypothetical to
demonstrate that CDA immunity does not apply to all claims causally connected to the publication of information, but this is necessarily (and perhaps purposely) hyperbolic. The very purpose of a website like CrimeSpace is to facilitate crime, while the purpose of MySpace's website
is to make connections between people-a goal that is not, in itself, criminal. This distinction
makes all the difference. See discussion supra Part V.
248 See generally Sony, 464 U.S. 417.
249 See generally Grokster, 545 U.S. 913.
250 Sony, 464 U.S. 417.
251 Grokster, 545 U.S. 913.
252 545 U.S. 913 (2005).
253 464 U.S. 417 (1984).
254 See generally Sony, 464 U.S. 417 (manufacturer of Betamax VTR was not liable for copyright infringements of purchasers); Grokster, 545 U.S. 913 (file-sharing website held liable for
copyright infringements of its users).
255 In Grokster, Justice Souter began his opinion by stating the issue as vicarious liability for
copyright infringement. 545 U.S. at 918-19. Sony stated the issue as "whether the sale of petitioners' copying equipment to the general public violates any of the rights conferred upon re-
2008]
would apply to the broader category of "illegal activity." This issue has
not (yet) been raised in Julie's case, and even if it would be, Sony and
Grokster would not be binding on the MySpace court, because the MySpace case is not one involving copyright infringement. However, the
issue is so similar in nature that it is difficult to imagine that the court
would not look to these cases for guidance if it were to evaluate the case
2 56
on the merits.
The plaintiffs in Sony were copyright holders of certain television
programs, asserting that Sony was liable for copyright infringements
committed by purchasers of the Betamax VTR when they recorded
these protected programs for home use. 2 57 The Court held that Sony
was not liable under the theory of contributory infringement because
the Betamax had substantial non-infringing uses,2 58 and the public
would be deprived of these uses if the requested injunction was
granted. 9
Grokster and StreamCast 260 operated file-sharing websites, where
users could download files from other users connected to the system
without paying a fee.26 ' Most of the files downloaded through Grokster
and StreamCast were copyrighted music andmovie files.26 2 The holders
of these copyrights sued the websites for cohtributory infringement, as
billions of protected songs were illegally copied each month.2 6 3 The
Court found for the plaintiffs, holding that a party that "distributes a
device with the object of promoting its use to infringe copyright, as
shown by clear expression or other affirmative steps taken to foster inspondents by the Copyright Act." 464 U.S. at 420. Additionally, the extensive literature
discussing the scope of Grokster and Sony asserts that the holdings do not extend to cases beyond
those involving copyright infringement. See, e.g., Patrick Murck, Comment: Waste Content:
Rebalancing Copyright Law to Enable Markets of Abundance, 16 ALB. L.J. Sci. & TECH. 383
(2006).
256 Difficult, but apparently not impossible, as neither the Complaint nor the Memorandum
obtained from the plaintiffs bears any indication that any of the parties even considered this
issue.
257 See generally Sony, 464 U.S. 417.
259
Id. at 423.
Id. at 443.
260
The two were originally defendants in different cases, but were joined by the court. See
258
generally, Grokster, 545 U.S. 913.
261 Id. at 919-20.
262
263
Id. at 920.
Id.
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[
fringement, is liable for the resulting acts of infringement by third
parties."264
Julie's claim in her suit against MySpace poses similar issues. She
contends that MySpace shares responsibility for her assault by Solis because it provided a forum for the two to interact, without which Solis
would likely never have found her, and therefore MySpace is liable for
facilitating the assault. 265 Her argument, that MySpace provided Solis
with a device-the website-which enabled him to commit an illegal
act, is similar to the one in Grokster, that Grokster provided its users
with the medium through which they were able to illegally download
songs and movies.
While this appears to be a logical comparison, the argument for
Julie's case misses the point entirely. MySpace and Grokster do share
certain similarities: both are Internet services; both provide free services
to users; both are financed by advertisements; 266 and both have been
used for illegal purposes. That list, however, is where the similarities
end. In Grokster, Justice Souter emphasized that both of the defendants
were aware that the primary use of their services was for illegal
downloading, and he in fact stressed that this use was their intent. 26 7 A
significant distinction that is overlooked in Julie's case is that MySpace's
primary purpose-connecting people to others with similar interests,
backgrounds and so on28-is not unlawful. Consequently, the question now becomes whether MySpace is being accused of facilitating the
sexual assault of Julie by Solis, in which case a determination of whether
contributory liability applies is appropriate, or whether MySpace is being accused of "introducing" Julie and Solis, in which case contributory
liability seems inapplicable on its face.
If the offense complained of is the introduction of predator and
victim, MySpace is not likely to be liable for fostering the ultimate offense. Professor Ramasastry likens the case to similar offline situations,
such as the date-rape victim who attended a rave or party.26 9 She analo
264
265
266
Id. at 919.
See generally, Complaint, supra note 19.
See MySpace, Frequently Asked Questions, http://www.myspace.comlindex.cfm?fuseac-
tion=misc.faq&Category=9&Question=33 (last visited Feb. 13, 2007); Grokster, 545 U.S. at
926.
267
Grokster, 545 U.S. at 923.
268 See "About Us" http://www.myspace.com/Modules/Common/Pages/AboutUs.aspx
visited Feb. 13, 2007).
269 See Ramasastry, Should Networking Sites Be Legally Responsible, supra note 69.
(last
2008]
gizes that just as the date-rape victim would not sue the club that held
the rave, MySpace should not be held responsible for providing the
means through which Solis contacted Julie.27 ° She posits that younger
people meet older people at clubs all the time, as the age verification
methods suggested to MySpace do not exist in the real world.2 7 ' Consequently, imposing an age verification system or other safety measures on
MySpace will not deter predators by stymieing their efforts to find victims online; it will only force them to keep looking at parties and all-age
clubs.27 2
Whereas the question in Grokster is whether the distributors of
software are liable for infringements accomplished only through use of
that software, the question in MySpace is whether the interactive computer services are vicariously liable for acts committed off the Site, but
that may have been initiated on the website.27 3
MySpace did not provide the means for the unlawful act, although
it might be argued that it provided a means for it. It must be noted that
the causation requirement in copyright infringement cases like Grokster
is different from the causation requirement in negligence claims.274 To
establish a negligence claim, the plaintiff has the burden of proving,
along with the other elements of negligence, [that the defendant's actions
proximately caused plaintiffs injuries.27 5 Conversely, in a claim for
damages in copyright infringement, there is a presumption that the infringement (if found to have occurred) caused plaintiffs damages, and
the burden is on the defendant to rebut that presumption, either by
proving that consumers would have purchased the product absent the
infringing element, or by showing that the profits gained by the defendant do not only result from the infringement, but are the product of
other, extrinsic factors as well.2 76
Vicarious liability in cases like Grokster or MySpace is heavily dependent on the defendants' ability to police the actions of the third
party. 277 Justice Souter explicitly makes the point that Grokster and
271
Id.
Id.
272
Id.
270
273 See generally, Complaint, supra note 19; Doe v. MySpace, 474 F. Supp. 2d 843 (W.D.
Tex. 2007).
274 See discussion, supra Part II.B.
275 See 1-1 Texas Torts and Remedies § 1.04.
276 4 M. NIMMER & D. NIMMER, NIMMER ON
277 See Sony, 464 U.S. at 438, n.18.
COPYRIGHT
14-03 (2005).
506
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[
StreamCast do not use servers, and therefore could not monitor the contents of users' requests.1 8 Further, Grokster does not maintain that the
2 79 MySdefendants had an independent duty to monitor their users.
pace does not specifically monitor the content of users' profiles, emails,
or chats, but it reserves the right to do so in its Terms.28 ° That reservation can lead to the conclusion that the Site does operate on a central
server, thereby enabling it to monitor users and more strictly enforce the
rules, as with the rule discussed above barring use by people under the
age of fourteen.2 81 The Sony Court emphasized that Sony had no direct
involvement with infringers, and did not promote infringement,2 8 2 just
as MySpace did not promote assault, although both were aware that
their products could be used for these illegal purposes. MySpace had no
obligation to monitor its users' online activity, and can not be held responsible for not doing so, particularly if the offense occurred because
Julie's offline actions were unsupervised.2 8 3
Thus, Doe v. MySpace is distinguishable from Grokster in that the
unlawful act did not actually take place on the Site, but only resulted
from those interactions that did take place on the Site. The "but for"
causation, similar to that nkcessary for a claim of negligence, is lacking.
In MySpace, there is an additional step in the process between the use of
the website and the offense that undermines the claim.
This extra step makes a very big difference. In Grokster, the use of
the website (albeit not in all instances) was the infringement. As such,
278
279
The Court could not find contributory liability based on a failure to prevent infringe-
ments, absent evidence of intent. Id. at 939, n.12.
280 Paragraph 7 of the Terms reads:
MySpace.com assumes no responsibility for monitoring the MySpace Services for inappropriate Content or conduct. If at any time MySpace.com chooses, in its sole
discretion, to monitor the MySpace Services, MySpace.com nonetheless assumes no
responsibility for the Content, no obligation to modify or remove any inappropriate
Content, and no responsibility for the conduct of the User submitting any such
Content.
http:l/www.myspace.com/Modules/CommonPageslTermsConditions.aspx.
281 See Part I, supra; Ramasastry, Should Networking Sites Be Legally Responsible, supra note
136.
282
Sony, 464 U.S. at 426.
283
See Ramasastry, Should Networking Sites Be Legally Responsible, supra note 69. Professor
Ramasastry submits that parents are attempting to place the blame on internet service providers,
rather than admit that their failure to properly educate their children of the dangers of speaking
to and meeting with strangers plays a bigger role in causing incidents similar to Julie's.
2008]
billions of copyright infringements occurred on Grokster each month, 28 4
making it very difficult for copyright holders to go after each infringer
individually, and therefore making it more reasonable to sue the distributor of the software that facilitated the infringements.2 85 In contrast, a
single person injured Julie. She can "go after" Solis with little difficulty,
and does not need to take the path of suing MySpace in order to make
herself whole. The fact that she met Solis on MySpace should not entitle her to extract such damages from the company-as illustrated in the
rave analogy above2 8 6-especially if the incident occurred offline, as a
result of her own actions and misplaced trust.
Furthermore, Julie likely lacks standing to sue MySpace, and to
reach all sexual predators on the website, since she was not injured by all
of them. Additionally, her claim would most likely be viewed as a generalized grievance of the sort which the courts have always felt was better
suited for resolution by the legislature.2 8 7 Similarly, the Sony Court
stated that Universal Studios did not have standing to get an injunction
or royalties from Betamax sales because it did not represent the entire
class of injured parties.2 8 8 Julie does not represent the whole class of
people who were injured by sexual predators that were contacted
through MySpace, and therefore is unlikelyj to get an injunction or to
shut down the Site.2 89 Of equal concern is the apprehension that success for Julie could open the floodgates of litigation for people who have
been victimized by those they have met on the Internet.
Based on the logic of Grokster, MySpace should not be held responsible for the assault on Julie. Grokster was liable because it marketed its product with the intention that it would be used to infringe,
and even aided the process by answering e-mails sent by users with questions on how to download copyrighted songs.29 ° If MySpace received
notice of an incident, that user's profile would be deleted,2 91 evidencing
that the company does not wish to promote illegal activity, and did not
284
285
Id. at 929-30.
See supra notes 269-272 and accompanying text.
See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (noting that a father's
insistence that recitation of the Pledge of Allegiance at school violated the First Amendment was
a generalized grievance "more appropriately addressed in the representative branches").
288 Sony, 464 U.S. at 434, 446.
289 See Mintz, supra note 20. There are currently at least four other complaints with similar
286
287
facts filed against MySpace. Id.
290 Grokster, 545 U.S. at 923.
291 MySpace.com's Terms & Conditions, paragraph 8, states:
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292
"fail ... to act on [actual] knowledge" of illegal activity on its Site.
Further, MySpace has announced that adoption of new safety measures
to prevent further incidents of predation.2 9 3 In contrast, there is no
evidence that Grokster tried to prevent infringements.2 9 4 In fact, Grokster and StreamCast took great pains to encourage infringement-using
advertising campaigns and the like to attract former Napster users.29 5
Their business models showed that inducing illegal infringements was
the main goal in marketing their software. 2 96 Helping sexual predators
contact victims is not MySpace's primary purpose, nor its predominant
use; MySpace bears no similarity to Grokster to that extent. MySpace
encourages social networking, not predation; its main purpose is not
illegal. Furthermore, the Sony court felt that: "[c]ommerce would indeed be hampered if manufacturers of staple items were held liable as
8. ... MySpace.com reserves the right to investigate and take appropriate legal action
against anyone who, in MySpace.com's sole discretion, violates this provision, including without limitation, removing the offending communication from the MySpace
Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to Content that ...:
2. . . . harasses or advocates harassment of another person;
3. exploits people in a sexual or violent manner;...
5. solicits personal information from anyone under 18;.
7. promotes information that you know is false or misleading or promotes illegal
activities ...;
11. furthers or promotes any criminal activity ...
12. solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
The Terms then adds:
The following is a partial list of the kind of activity that is illegal or prohibited on the
MySpace Website and through your use of the MySpace Services.
1. criminal or tortious activity, including child pornography, fraud, trafficking
in obscene material, drug dealing, gambling, harassment, stalking, spamming,
spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets; ....
10. using any information obtained from the MySpace Services in order to harass, abuse, or harm another person; ....
12. using the MySpace Services in a manner inconsistent with any and all applicable laws and regulations.
http://www.myspace.comlModuleslCommonlPageslTermsConditions.aspx (last visited Feb. 14,
2007); see also note 136, supra.
292 See Grokster, 545 U.S. at 927.
293 See Hansell, MySpace to Add Restrictions, supra note 110.
295 Id. at 925. Napster was the first of such online services to allow users to download
copyrighted songs for free. It was shut down after a suit similar to Grokster. A&M Records v.
Napster, Inc., 284 F.3d 1091 (9th Cir. 2002).
2008]
509
contributory infringers whenever they "constructively" knew that some
purchasers on some occasions would use their product for a purpose
which a court later deemed, as a matter of first impression, to be an
infringement. ' 297 Granted, MySpace cannot really be considered a
"manufacturer of staple items" but the principle applies nonetheless: distributors of a useful product would be reluctant to market it to the
public if they knew that any conceivable illegal use-however uncom298
mon-could subject them to liability.
In addition, some commentators on the issue have expressed concern that imposing liability on interactive computer services for actions
of their users, or requiring that the ICSs monitor their websites, may
result in over-deterrence, in that the ICSs may even censor content that
courts would not find offensive for fear of facing liability. 299 The implication is that imposing liability will not simply deter infringements and
other unlawful acts, but instead will make ICSs hesitant about developing new products or services if almost any service that can be used illegally can potentially expose them to liability.
The Court in Sony held that because the Betamax's primary purpose of time-shifting 0 0 was legal, Sony was not liable for any infringements users may commit using the Betamax. 3 0 1 Otherwise, the public
would be deprived of the product's non-infringing use. 30 2 MySpace's
primary purpose is not only lawful, it is thought to be beneficial to the
public. Today's societal values encourage developments in communica297
Sony, 464 U.S. at 426-27 (quoting the District Court opinion, Universal City Studios,
Inc. v. Sony Corp. of America, 480 F. Supp. 429, 461 (C.D. Cal. 1979)).
298 The District Court in MySpace also recognized this concern as valid. Doe v. MySpace,
Inc., 474 F. Supp. 2d 843, 850 (W.D. Tex. 2007).
299 See e.g., Assaf Hamdani, Who's Liable for Cyberwrongs?, 87 CORNELL L. REV. 901 (suggesting methods of contributory liability for ICSs that may solve the problem of over-deterrence). Hamdani suggests that a "knowledge-contingent standard" for imposing liability, like
that involved in Grokster, avoids over-deterrence, but may cause ICSs to ignore their users'
misconduct. He argues that knowledge-contingent standards would only be beneficial when
applied under a regime of monitoring regulations. Id. at 936.
300 Sony, 464 U.S. at 423:
The respondents and Sony both conducted surveys of the way the Betamax machine
was used by several hundred owners during a sample period in 1978 ...
Both
[surveys] showed that the primary use of the machine for most owners was "timeshifting"-the practice of recording a program to view it once at a later time, and
thereafter erasing it. Time-shifting enables viewers to see programs they otherwise
would miss because they are not at home, are occupied with other tasks, or are viewing a program on another station at the time of a broadcast that they desire to watch.
301 Id. at 421.
302 Id. at 423, 443.
510
V 6:467
[Vol.
tion and information technology, "an interest that 'is consistent with the
First Amendment policy of providing the fullest possible access to information through the public airwaves.'"313 The Grokster Court also expressed concern that imposing liability on the distributors of infringing
software will thwart technological development, 30 4 but ultimately ruled
against Grokster, reasoning that the sheer number of illegal downloads
required the imposition of liability. 30 5 The number of sexual assaults
that occurred or were initiated through MySpace is not even close to
comparable, and is clearly outweighed by the number of "non-incidents," or the "safe" relationships formed through the Site.
While Grokster does bear on the MySpace case, it is important to
remember that Grokster is a case about contributory copyright infringement, while the MySpace case does not involve copyrights at all. 30 6 Justice Souter defines contributory infringement as "intentionally inducing
or encouraging direct infringement." 30 7 Justice Stevens, in Sony, stated
that contributory infringement has often been described as "involving
an ongoing relationship between the direct infringer and the contributory infringer at the time the infringing conduct occurred. ' 3 8 On the
other hand, it cannot be said that MySpace induced or encouraged sexual assault; it did not profit from it, and it did not refuse to exercise a
3 °9
right to stop it.
Grokster explained that, under Sony, liability for contributory infringement of copyrights will not inure to the manufacturers of products
that have a fair, non-infringing use, even if the manufacturer knows that
its product can be used for infringing purposes; rather, Grokster limited
liability to cases where there was some more acute fault than the mere
303
Id. at 425 (citing the District Court opinion, Universal City Studios, Inc. v. Sony Corp.
of America, 480 F. Supp. 429, 454 (C.D. Cal. 1979)).
305 Id.
306 Compare id. at 918-19 ("The question is under what circumstances the distributor of a
product capable of both lawful and unlawful use is liable for acts of copyright infringement by
third parties using the product.") and Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 849 ("Plaintiffs argue this suit is based on MySpace's negligent failure to take reasonable safety measures to
keep young children off of its site... through postings on MySpace, Pete Solis and Julie Doe met
and exchanged personal information which eventually led to. . . the sexual assault of Julie
Doe.").
308 Sony, 464 U.S. at 437.
309 The Terms specifically reserves the right to delete profiles for inappropriate conduct.
Terms & Conditions, http://www.myspace.comlindex.cfm?fuseaction=misc.terms, at 1
also supra note 136.
7-8; see
2008]
knowledge that some of one's products could be, or even were being,
misused.3 10 Simple knowledge of infringing use would not be sufficient
to subject a distributor to liability.3 11 There is no evidence that MySpace "acted with a purpose to cause .. .violations by use of software
suitable for illegal use."' 3 12 This assertion is further supported by the
fact that the illegal act was not committed on the Site, but rather offline,
independent of the website. MySpace cannot control what users do offline, and there is no evidence that its goal was to influence offline
behavior.
The parties and many of the amici in Grokster felt that the key to
resolving the issue in that case was the Sony rule: if a fair, non-infringing
use exists, then the distributors of the product cannot be responsible for
illegal infringements made possible through use of this device.3 13 The
Grokster decision added the caveat that evidence of active promotion or
other forms of contribution to infringement, or evidence that the distributor intended the product be used to infringe will subject the distributor to liability, even if a fair use can be found. 1 As mentioned,
3 15
the holding in Sony was limited to cases of copyright infringement.
However, a broader application of the rule would mean that a distributor of a product that has potential for illegal usage cannot be held liable
for those illegal acts committed by use of the product, as long as the
distributor did not intend for the product to be used for such purpose,
and did not encourage, assist, or promote such use. Under that broad
rule, MySpace cannot be held liable for the assault on Julie. MySpace's
primary uses, such as social networking, promotion of communication,
and advertising for new artists, are non-infringing. MySpace did not
promote, encourage, or intend the use of its website to facilitate predation. 316 Further, nowhere in the Complaint does Julie suggest that,
MySpace had any such intent.
310
311
312
313
314
Grokster, 545 U.S. at 933-34.
Id. at 937.
Id. at 938.
Id. at 933.
Id. at 934-35.
315 The question in Sony was whether Sony was liable for contributory infringement when
consumers of the Betamax would use the device to copy protected television shows and films.
Therefore, the finding that Sony was not liable necessarily only applies to similar cases dealing
with infringement. See Sony Corp. of Am. v. Univ. City Studios, Inc., 464 U.S. 417 (1984).
316 See Brief of Appellee, supra note 4, at 38, stating that
MySpace does not solicit or prompt its users to assault minors, nor does it solicit or
prompt minors to provide detailed personal information to strangers. To the con-
512
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[
The Grokster Court held that the Ninth Circuit misapplied the
Sony rule by saying that any non-infringing use absolves the distributor
of vicarious liability, unless it had specific reason to know of specific
cases of unlawful uses.3 17 There is no evidence that MySpace had information on specific cases of assault by predators the victims encountered
on the Site. And even if it did, any information they did have was
obtained after the fact-MySpace was not in a position to prevent any
3 18
incidents.
CONCLUSION
The Doe plaintiffs argue that "[t]he Internet is the only place in the
world where sexual predators can anonymously communicate with minors. Thus, ICSs such as MySpace must institute safety measures to
ensure that such communication does not occur. It is the lack of these
measures that is at issue here. '31 9 But the issue in this case, more accurately stated, is whether that lack of security measures makes MySpace
vicariously liable for what happened to Julie offline.3 2 °
The plaintiffs insist that MySpace is liable because it "provided an
environment that facilitated" the assaults.3 21 However, providing the
environment that ultimately led to the assault is not the same as contributing to or causing the offense. MySpace did not specifically promote
use of the Site for predation. Just as one who sells the paper and pen
used by a forger would not be held liable for their role in forging documents, MySpace should not be liable for Solis' raping Julie after meeting
her on the Site. The existence and offering of the MySpace services to
the public can not be said to have proximately caused the assault on
Julie.
trary, the MySpace Terms of Use and Safety Tips both warn teen members about the
dangers of providing personally identifying information to strangers .... [T]he communications that form the basis of Appellant's Complaint were provided despite MySpace's rules and policies, not in furtherance of its policies.
317
318
The only way MySpace could have prevented incidents like this one is to block registered
or convicted sex offenders from the Site. However, there is no evidence that Solis had any prior
offenses, so Julie's case would not have been avoided anyway. This rule would also implicate the
issue of identity verification discussed supra, in Parts II.B.1 and II.C.
319 Memorandum, supra note 2.
320
See Doe v. MySpace, Inc., 474 F. Supp. 2d 843 (W.D. Tex. 2007).
321
Memorandum, supra note 2, at 12.
20081
Although Sony and Grokster provide the most relevant precedents,
their holdings are explicitly limited to copyright infringement.3 2 2 Thus,
MySpace is essentially a case of first impression.3 23 Grokster says that
imposing secondary liability on ICSs requires more than mere knowledge that their websites can be used to further illegal ends.32 4 Rather,
they must have encouraged the illegal acts, intended that their service be
used for those acts, and profited from its having been used in that
way.3 2 5 Sony was not held liable for copyright infringements committed
by taping television programs on the Betamax it distributed because the
product's primary purpose-time-shifting-was not illegal. 326 Because
the Sony decision survived Grokster,32 7 it must be that distributors of a
product-or in this case a service-with unlawful uses are not liable for
those uses when the primary purpose of the product or service is not
unlawful.
MySpace did not encourage predation, nor did it intend for its
service to be used to further sexual offenses. As such, MySpace did not
cause Julie's injuries. MySpace's primary purpose is to connect people
with similar interests, and to provide its advertisers with the audience
that will be most receptive to their advertisements. 28 Shortly after receiving notice of incidents of sexual predation on the Site, MySpace
took steps to provide stronger safety measures. 2 9 MySpace did not intend for the illegal use, nor did it promote it or profit from it.33 ° MyS322
See Sony, 464 U.S., at 456; Grokster, 545 U.S. at 941.
323
Grokster did raise the issue of vicarious liability independently, but did not reach the
question because the case was resolved under the issue of contributory infringement. See Grokster, 545 U.S. at 931, n.9.
324
325
326
327
Id. at 932-33.
Id..
Sony, 464 U.S. at 456.
There are many articles that discuss the effects of the Grokster decision and the fact that
Sony survived it, often analyzing the application of each holding. See, e.g. John M. Moye, Comment: How Sony Survived: Peer-to-PeerSoftware, Grokster, and Contributory Copyright Liability in
the Twenty-First Century, 84 N.C.L. REv. 646 (2006).
328 See MySpace Report, supra note 8 ("MySpace... [has] always designed their site with the
intention of advertising .... This [primary goal] is why ....
News Corp. was interested in the
marketing demographic database that is MySpace.").
329 See supra Part I.
330 The plaintiffs assert that MySpace profits from the lack of age verification measures, as
allowing users to provide an incorrect age in their profiles increases their advertising revenue by
increasing membership. Memorandum, supra note 2, at 15. However, if MySpace's advertising
is so valuable because it streams the ads to the groups who will likely be most receptive to them,
users' lying about their ages will not help sales to these advertisers because their advertisements
would be streamed to uninterested members, and therefore advertising profits will decrease.
514
CARDOZO PUB. LAW, POLICY 6- ETHICS J.
[Vol. 6:467
pace's primary purpose is not illegal, and therefore only one conclusion
can be drawn: MySpace is a Betamax.
Going beyond the fact that MySpace is not liable under existing
law, courts must recognize that a contributory liability regime would
not prove beneficial. Indeed, the District Court has noted "Congress's
recognition that the potential for liability attendant to implementing
safety features and policies created a disincentive for interactive com-1
33
puter services to implement any safety features or policies at all."
Making ICSs liable for users' misconduct would hinder technological
development, and place restraints on free speech and communication.
Imposing liability would create more problems than it solves. Despite
the difficulties that ICSs will face in development, it is argued that eventually, technology will develop ways to circumvent liability, as it has
with similar rulings in the past. "When control of the network resulted
in liability, Grokster and others created a decentralized network and disclaimed control Now that intent has become problematic, [newer websites] 332 demonstrate that even the specter of intent can be removed
from these technologies. ' 333 Sooner or later, both courts and plaintiffs
will run out of alternatives but to hold direct perpetrators responsible
for their own actions.
Even so, profiting from the lack of age verification system is not the same as profiting from
assaults on users like Julie, and the establishment of the former does not establish the existence
of the latter, and certainly not liability for it.
331 Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 850 (W.D. Tex. 2007).
332 See, e.g., http://www.yousendit.com and http://www.bittorrent.com.
333 Bryan H. Choi, Note: The Grokster Dead-End, 19 HARv. J. LAw & TECH 393, 404
(2006). YouSendlt and BitTorrent are websites that separate the functions of "discovering" and
"delivering" files to be shared, by handling the data to be delivered to other websites that accept
requests from users. This system precludes any monitoring of users' requests because YouSendIt
and BitTorrent have no way of preventing downloads of copyrighted materials, thereby making
it extremely difficult for copyright holders to track downloads. See Id. at 401-04.

myspace in a post-grokster world: digital finger pointing for offenses

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