Back in February, Denise Finkel, a 2008 graduate of Oceanside High School on Long Island, sued four of her former high school classmates and their parents after the students created a private Facebook group called "90 Cents Short of a Dollar," which allegedly contained false and defamatory statements about her. 

Rather surprisingly, Finkel also sued Facebook, claiming that the über-popular social network should be held liable for publishing the defamatory statements because it "should have known that such statements were false and/or have taken steps to verify the genuineness" of the statements. Complaint ¶ 28.  (The complaint also alleges that the students' parents are liable for negligently failing to supervise their children.)

As Eric Goldman presciently noted at the time, "[w]ith respect to the claim against Facebook, this lawsuit is unquestionably DOA."  After all, even a cursory reading of the complaint demonstrates that Facebook qualifies for protection under Section 230 of the Communications Decency Act. Indeed, our database is littered with the wreckage of similar claims filed against social networks that ran aground on Section 230's protective shoals.

So why am I even writing about this case?  In an effort to save herself from certain disaster, the plaintiff threw out a rather interesting argument in her opposition to Facebook's motion to dismiss, arguing that because Facebook's Terms of Service granted it an "ownership" interest in the content on its site, it was not entitled to protection under Section 230.  This is the first time I recall seeing an argument like this (note, this is a different argument than the plaintiffs made in Barnes v. Yahoo! and Mazur v. Ebay, which were premised on ToS-based duties flowing to the plaintiffs).

As my colleague Sam Bayard pointed out back in August:

I think the plaintiff quotes selectively from Facebook's terms of use and misrepresents what the quoted language actually means. First off, the quoted passage says that site content is the "proprietary property of the Company, its users, or licensors with all rights reserved."  This plainly suggests that users own some of the content.  Plus, if you look closer at the rest of the terms, you'll see that lots of material expressly dealing with user content, including the grant of a license to Facebook to make various uses of user content.  If Facebook already owned the content, it wouldn't need a license.

Putting aside the factual accuracy of the plaintiff's "ownership" theory, copyright ownership would seem to be irrelevant to the analysis under Section 230 which requires only that the content at issue be "provided by another information content provider." 42 U.S.C. § 230(c)(1).  While no court has (prior to Finkel) addressed this specific question, there are plenty of cases saying that the provider of an interactive computer service doesn't lose Section 230 immunity even if it pays someone to create content (as long as the person is an independent contractor, not employee).  See, e.g., Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).

Well, we now have an answer, albeit without much analysis.  In a 5-page decision issued last month, New York Supreme Court Justice Debra James made short work of the plaintiff's ownership theory, holding:

"Ownership" of content plays no role in the Act's statutory scheme.  The only issue is whether the party sought to be held liable is an "interactive computer service" and if that hurdle is surmounted the immunity granted by 42 USC 230(c)(1) is triggered if the content was provided by another party.

Finkel v. Facebook, 2009 N.Y. Slip Op. 32248, at 3-4 (N.Y.Sup. Sep 15, 2009).  The claims against the individual defendants were not dismissed.