Law Students

Should 47 USC 230 be an affirmative defense?

No. I agree with the analysis here. A defendant should be able to prevail on a 12(b)(6) motion to dismiss when the plaintiff clearly does not state a valid claim under 47 USC 230. To hold otherwise will allow unscrupulous plaintiff's to hold the proverbial "gun to the defendant's head" given the cost of litigation.

Allowing an invalid claim to survive will have a chilling effect, one that is likely to impact small firms who, by and large, drive much of the innovation that occurs on the web, and most of the commerce as well. Courts need to start paying more attention to restraint of trade issues that are implicated here, and in intellectual property litigation in general.

While the "little guy" has always been at a disadvantage under American jurisprudence, the Internet has magnified the disadvantage to an extent that some relief is essential. Stopping invalid claims upfront is one way of meeting this objective.

Full post as published by LawTechTV on June 19, 2009 (boomark / email).