herman v xcentric defendant sj motion
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HERMAN & RUSSO, P.C.;MELISSA A. HERMAN;DAVID A. RUSSO,
Plaintiffs,
v.
XCENTRIC VENTURES, LLC, andEDWARD MAGEDSON, and JOHN
OR JANE DOE,
Defendants.
Case No: 10-CV-0398-CAP
DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR
MOTION FOR SUMMARY JUDGMENT
Pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1, Defendants Xcentric
Ventures, LLC and Ed Magedson (Defendants) move the court for an order
granting summary judgment as to all claims in this matter. This motion is based on
one basic pointin light of the undisputed material facts, Defendants are entitled
to judgment as a matter of law as to the issue of immunity pursuant to the
Communications Decency Act, 47 U.S.C. 230(c)(1) (the CDA).
I. INTRODUCTIONSince the CDA was enacted in 1996, every state and federal court that has
considered the merits of a claim against the Ripoff Report haswithout
exceptionagreed that Xcentric and Magedson are entitled to immunity under the
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CDA for statements posted by third party users. See, e.g., GW Equity, LLC v.
Xcentric Ventures, LLC, 2009 WL 62173 (N.D.Tex. 2009) (holding Xcentric and
Magedson entitled to immunity under the CDA); Intellect Art Multimedia, Inc. v.
Milewski, 2009 WL 2915273 (N.Y.Sup. 2009) (same); Whitney Info. Network Inc.
v. Xcentric Ventures, LLC, 2008 WL 450095 (M.D.Fla. 2008) (same); Global
Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F.Supp.2d 929 (D.Ariz. 2008)
(same).
Like every prior case in which the CDA was found to protect Defendants,
the current action attempts to use creative lawyering and fancy-sounding
allegations to accomplish exactly what the law does not permitimposing liability
on Defendants for material they did not create or alter in any material respect.
Courts have unanimously determined the CDA expressly prohibits this result and
nothing about this case warrants a different result. As such, Defendants are
entitled to summary judgment.
II. BACKGROUND FACTSDefendants Xcentric and Ed Magedson operate the website
www.RipoffReport.com which allows consumers to post complaints and to review
complaints written by other users. Defendants Statement of Facts (DSOF) 1.
Plaintiffs Melissa A. Herman and David A. Russo are bankruptcy lawyers and
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partners in a firm, Herman & Russo, P.C., with offices in Woodstock, Georgia.
First Amended Complaint (FAC; Doc. #12) 13.
This case arises from a single report posted on www.RipoffReport.com on
February 11, 2009 by an anonymous author identified as John or Jane Doe. The
text of this report is set forth in 39 of Plaintiffs First Amended Complaint.
DSOF 2. The report is written from the perspective of an unhappy former client
who stated that Plaintiffs accepted $30,000 to handle the authors case but then
failed to return phone calls and otherwise neglected the case. DSOF 3. The
report contains a title with a similar message. DSOF 4.
The Complaint does not allege that the substance of the report was created
by Defendants. Rather, the Complaint alleges that the report was created solely by
John/Jane Doe without any input from Defendants. DSOF 5. Defendants agree
that this allegation is entirely correctthe report was created solely by a third
party without any input or encouragement from Defendants. DSOF 6.
Likewise, the Complaint does not allege that the title of the report was
created by Defendants. Rather, Paragraph 40 of the FAC alleges the author
John/Jane Doe created the reports title without any input or co-development by
Defendants. DSOF 7. Again, Defendants agree that this is correct; every word
in the title as quoted in the FAC was created solely by a third party. DSOF 8.
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Thus far, it is undisputed that every word which forms the basis for
Plaintiffs claims was created solely by John/Jane Doe without any input or
encouragement from Defendants. The next question is obvious: if Defendants did
not create the report or the title, what defamatory information did they create? The
answer is found in Paragraph 42 of the FAC which alleges that Defendants
added the words Rip-off Report: to the beginning of the title of John Does
report. DSOF 9. Plaintiffs also allege that the website address
(www.RipoffReport.com) defames them, as well as the slogans by consumers, for
consumers and Dont let them get away with it. DSOF 10. The exact
location of this added content is shown in the screenshot below:
Text
Added
By
Defendants
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Based on these facts, Plaintiffs seek to hold Defendants responsible for every
word of the entire posting, even the portions which Plaintiffs admit were not
created or altered by Defendants. This argument is directly contrary to well-settled
law. Summary judgment should therefore be entered in favor of Defendants as to
all claims in this case.
III. ARGUMENTBefore tackling specific points, the court should note that this motion relies
on a crucial distinctionthe distinction between text created by Defendants and
text created by a third party user of the Ripoff Report website. As a matter of
course and with one general exception,1 Defendants agree that the CDA does not
apply to text which they themselves created. This point is beyond dispute;
1 The exception is as follows: users of the Ripoff Report website may choose toplace their report into a category such as lawyers. Although the actual words foreach category choice were created by Defendants, the decision to select thosewords for a particular report is a choice made by the author, not by Defendants. Asa matter of law, Defendants are still entitled to CDA protection as to user-selectedcategory choices even if the words were initially created by Defendants; Thisminor and passive participation in the development of content will not defeat CDAimmunity, which can even withstand more active participation. Global Royalties,2007 WL 2949002 at *3 (citingBatzel v. Smith, 333 F.3d 1018, 1031 note 19 (9
thCir. 2003)); see also Whitney Information Network, Inc. v. Xcentric Ventures, LLC,2008 WL 450095, *10 (M.D.Fla. 2008) (noting, the mere fact that Xcentricprovides categories from which a poster must make a selection in order to submit areport on the ROR website is not sufficient to treat Defendants as informationcontent providers of the reports .); see also GW Equity, LLC v. XcentricVentures, LLC, 2009 WL 62173, *5 (N.D.Tex. 2009) (same).
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Essentially, the CDA protects website operators from liability as publishers, but
not from liability as authors. Global Royalties, Ltd. v. Xcentric Ventures, LLC,
2007 WL 2949002, *3 (D.Ariz. 2007) (emphasis added). Of course, if the text
created by Defendants is not actionable, either because the text is not of and
concerning the plaintiff or because the text is non-actionable opinion, then claims
based on such content would fail even assuming the CDA does not apply.
On the other hand, if defamatory text was created by a third party without
material alteration from Defendants, the CDA prohibits imputing liability to
Defendants for another persons statements; This is precisely the kind of situation
for which section 230 was designed to provide immunity. Fair Housing Council
of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir.
2008). This distinction is pivotal because, Under the CDA, website operators are
only considered information content providers, for the information at issue that
the operators are responsible for creating or developing. GW Equity, 2009 WL
62173, * 7 (emphasis added) (citing Carafano v. Metrosplash.com, Inc., 339 F.3d
1119, 1123 (9th Cir. 2003)).
Put another way, if a website creates 1% of a posting, the site is liable only
as to that1%. If the other 99% was created solely by a third party, the website is
not responsible for that part of the text. See Gentry v. eBay, Inc., 99 Cal.App.4th
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816, 833 note 11, 121 Cal.Rptr.2d 703, 717 note 11 (Cal.App.4 th 2002)
(explaining, the fact appellants allege eBay is an information content provider is
irrelevant if eBay did not itself create or develop the content for which appellants
seek to hold it liable. It is not inconsistent for eBay to be an interactive service
provider and also an information content provider; the categories are not mutually
exclusive. The critical issue is whether eBay acted as an information content
provider with respect to the information that appellants claim is false or
misleading.) (emphasis added).
As explained further herein, the standard for CDA immunity is clear and
simplein order to overcome the CDA, Plaintiffs must show that Defendants are
responsible for creating defamatory statements about them and that those
statements are the ones for which Plaintiffs seek to hold Defendants liable. This
showing cannot be made here for three simple reasons:
1.) The undisputed facts show that Defendants did not create either thereport or the title at issue; this information was provided solely by a
third party. As such, the author may be liable to Plaintiffs for his/her
statements, but the CDA fully protects Defendants from liability as to
these statements;
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2.) To the extent Defendants created any content such as the wordsRip-off Report: these words are non-defamatory as a matter of law
and did not materially change the meaning of the original authors
statements. As such, liability cannot be based on these statements;
3.) The remaining content created by Defendants (such as the websiteaddress www.RipoffReport.com and general slogans on the site) is not
of and concerning Plaintiffs and is therefore not actionable by
Plaintiffs.
These three dispositive points are based on facts which are entirely
undisputed. As such, summary judgment should be entered in favor of Defendants.
A.Defendants Did Not Create Any Of The Allegedly DefamatoryText
As described in Paragraph 39 of the FAC, on February 11, 2009 a third party
author identified as John or Jane Doe logged into the Ripoff Report website and
posted a report about Plaintiffs. The full text of this report is quoted verbatim in
Paragraph 39 of the FAC.
Not surprisingly, the web page containing the report includes some content
from the author and some generic content created by Defendants. SOF 11.
When the user submitted this posting to the site, the authors content was
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combined with the existing generic material to create the final standardized page
common to every report on the website. SOF 12.
Generic Website Content OriginalContent from Author
Final Combined Web Page
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The FAC clearly recognizes this distinction by carefully and, for the most
part, correctly separating the allegedly defamatory text created by the author John
Doe, see FAC 39, from the other generic text which Plaintiffs claim was
added after-the-fact by Defendants. See FAC 4146. However, as a factual
matter, Plaintiffs have described the creation of the report in reverse order,
claiming that the author John Doe firstcreated the text of his/her report, and that
after this was done, Defendants then added their own original content to the
report. FAC 39 (emphasis added). This presents the facts in backwards order
and in a deliberately misleading manner.
In reality, the original content created by Xcentric and Magedson referred
to in 4146 of the FAC is nothing more than generic text contained in the
websites code which was created first, long before John Doe wrote the report at
issue here. DSOF 13. This code is part of the preexisting layout and format of
the Ripoff Report website and it is common to all 600,000+ user-generated reports
on the site. DSOF 14. Every page on the entire website includes the same
generic meta tags rip-off, ripoff and rip off which are used to identify the Ripoff
Report website, not to disparage Plaintiffs. DSOF 15.
In fact, although the code/tags can be viewed by anyone with average
technical skills who actively chooses to view the source coding for the website,
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meta tags such as rip-off, ripoff and rip off are not visible when viewing the
report page about Plaintiffs. DSOF 16. Moreover, the tags are not statements
about Plaintiffs; these are merely indexing tools used to accurately describe the
contents and location of the Ripoff Report site. DSOF 17. If these tags were
removed from the report about Plaintiffs, the report itself would appear completely
unchanged to anyone viewing it. DSOF 18.
As such, Defendants did not add their own original content to material
from the third-party author. On the contrary, the reverse is truethe author added
his/her text to the pre-existing generic templates on the Ripoff Report website.
DSOF 19. By doing so, the author caused the creation of the report about the
Plaintiffs (including the meta tags and related contents) and caused Plaintiffs
name to be associated with the domain name www.RipoffReport.com without any
involvement or input from Defendants. DSOF 20.
In fact, prior to the commencement of this lawsuit, Mr. Magedson had never
heard of the Plaintiffs, never saw the report about Plaintiffs, and he added nothing
whatsoever to that report. DSOF 21. In addition, every report submitted to the
site is reviewed by a staff member (known as a content monitor) who is
authorized to remove certain types of offensive or confidential personal material.
DSOF 22. The content monitor who reviewed the report about Plaintiffs states
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that she did not create, alter, or add to the report in any way whatsoever. DSOF
23. These facts are entirely undisputed and they are dispositive of all claims here.
To the extent Plaintiffs seek to dispute the facts by claiming that Defendants
somehow altered or added to the text created by John Doe after it was submitted
to the site, there is simply no evidence to support that allegation because it simply
is not true. Nevertheless, the question of whether Defendants created content such
as the name Ripoff Report is ultimately immaterial to the disposition of this
motion because the fact that the posting at issue contains a combination of some
text from the third party author and some text from Defendants does not make
Defendants jointly liable for every word in the posting. This is not how the CDA
works. Rather, Under the CDA, website operators are only considered
information content providers, for the information at issue that the operators are
responsible for creating or developing. GW Equity, 2009 WL 62173, * 7
(emphasis added). Because the undisputed fact is that Defendants only created the
generic portions of the Ripoff Report website and did not create or alter any part of
the report about Plaintiffs, the CDA applies to bar Plaintiffs claims against
Defendants. On identical facts and as explained above, Defendants have prevailed
on summary judgment in every previous case where the merits of the issue was
addressed. See GW Equity, LLC v. Xcentric Ventures, LLC, 2009 WL 62173
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(N.D.Tex. 2009) (holding Xcentric and Magedson entitled to immunity under the
CDA); Intellect Art Multimedia, Inc. v. Milewski, 2009 WL 2915273 (N.Y.Sup.
2009) (same); Whitney Info. Network Inc. v. Xcentric Ventures, LLC, 2008 WL
450095 (M.D.Fla. 2008) (same); Global Royalties, Ltd. v. Xcentric Ventures, LLC,
544 F.Supp.2d 929 (D.Ariz. 2008) (same).
Because Defendants are so clearly protected by the CDA, frustrated litigants
who dislike or disagree with the law (such as Plaintiffs) have attempted to
creatively plead their way around the CDA by falsely asserting that Defendants
materially contributed to the creation of the user-generated report in some manner.
In recent years, courts have strongly condemned such efforts and have explained
that the CDA must be broadly construed and interpreted to protect websites absent
clear evidence that the site directly contributed to the creation of illegal content:
We must keep firmly in mind that this is an immunity statute we areexpounding, a provision enacted to protect websites against the evilof liability for failure to remove offensive content. Websites arecomplicated enterprises, and there will always be close cases wherea clever lawyer could argue that something the website operator didencouraged the illegality. Such close cases, we believe, must beresolved in favor of immunity, lest we cut the heart out of section
230 by forcing websites to face death by ten thousand duck-bites,fighting off claims that they promoted or encouragedor at leasttacitly assented tothe illegality of third parties. Where it is veryclear that the website directly participates in developing the allegedillegality immunity will be lost. But in cases of enhancement byimplication or development by inference section 230 must be
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interpreted to protect websites not merely from ultimate liability,but from having to fight costly and protracted legal battles.
Roommates.com, 521 F.3d at 117475 (emphasis added). In keeping with the
spirit of protecting websites from claims based on little more than creative
lawyering, courts have frequently held that the CDA applies even when a
defendant adds his own original content to defamatory statements from another
person. See Hung Tan Phan v. Lang Van Pham, 182 Cal.App.4th 323, 105
Cal.Reptr.3d 791 (4th Dist. Ct. App. 2010). In Hung Tan Phan, the defendant
received an email which allegedly defamed the plaintiff in various ways. See
Hung Tan Phan, 182 Cal.App.4th at 32526. The defendant forwarded the email
(which he did not write) to a third party along with an introductory comment
(which he did write). With these facts, the court framed the question as follows:
What happens when you receive a defamatory e-mail and you forward it along,
but, in a message preceding the actual forwarded document, introduce it with some
language of your own? Id. at 325 (emphasis added). This scenario is analogous
to the theory presented by Plaintiffs here.
In arguing that the CDA should not apply, the plaintiff in Hung Tan Phan
suggested that because the defendant added his own comments to the defamatory
email before passing it along, he became responsible for the entire message
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including the text he did not create. See id. The trial court rejected this argument
and the California Court of Appeals affirmed, finding the defendant was entitled to
CDA immunity even though he added his own original content to the third partys
email. This conclusion was based on the rule that a defendants own acts must
materially contribute to the illegality of the internet message for immunity to be
lost. Id. at 326 (emphasis in original). Because the defendants own words were
not defamatory, the Court of Appeals found the CDA applied because, the only
possible defamatory content found in the e-mail was the original content
received by defendant Pham from [the original author]. Nothing created by
defendant Pham was itself defamatory. Id. at 328. For that reason, the appellate
court affirmed the application of CDA immunity. See id.
As discussed in Hung Tan Phan, many other courts have agreed with this
result. See generally Barrett v. Rosenthal, 40 Cal.4th 33, 51 Cal.Rptr.3d 55, 146
P.3d 510 (2006) (CDA provided immunity to defendant who posted an article
authored by a third party to an online newsgroup); Batzel v. Smith, 333 F.3d 1018
(9th Cir. 2003) (defendant who posted message from third party to an online
message board entitled to immunity under the CDA). Consistent with these
standards, courts have routinely held that Xcentric and Magedson are entitled to
CDA immunity even if they add content to reports posted on
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www.RipoffReport.com by third parties. For example, this exact issue was
addressed in GW Equity, LLC v. Xcentric Ventures, LLC, 2009 WL 62173
(N.D.Tex. 2009) where the court was asked to consider, among other things,
whether CDA immunity would be lost based on allegations that Defendants added
geographical information to the titles of existing reports.
Adhering to the traditional rules that CDA immunity will not be lost unless a
defendant is shown to have been directly involved in the creation of the material
which is defamatory, the District Court in GW Equity found that even if
Defendants added information to the title of a report, this was not sufficient to
cause a loss of immunity as to the entire report:
The Court notes that courts have construed immunity under the CDA
broadly in all cases arising from the publication of user-generatedcontent. In addition, even were Defendants to lose CDA immunitywith respect to geographical information in titles, the Court findssummary judgment would still be appropriate. Under the CDA,website operators are only considered information contentproviders, for the information at issue that the operators areresponsible for creating or developing. Thus, even if Plaintiff couldprove by a preponderance of the evidence that Defendants addedgeographical information to the allegedly disparaging titles of thedisparaging reports at issue in this case, the Court finds the addition
of geographical information alone would not be sufficient forDefendants to be liable for defamation/libel, interference withbusiness relationship, business disparagement under Texas law,disclosure of trade secrets and confidential information, and civilconspiracy as a matter of law.
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GW Equity, 2009 WL 62173, *7 (emphasis added) (internal citations omitted)
(quoting Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9
th
Cir. 2003))
(citingDoe v. Myspace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)).
Applying the GW Equity courts logic to the present case, Defendants are
entitled to summary judgment under the CDA because to the extent Plaintiffs are
attempting to impose liability on Defendants for material created by a third party
(such as the body-text of the report as described in FAC 39 or the title as
described in FAC 40), this theory is expressly prohibited by the CDA. It is an
undisputed fact that Defendants did not create and did not alter either the body or
the title of the report. As such, Defendants are entitled to CDA immunity as to
any/all claims arising from that material.
Of course, as the creators of the words Ripoff Report: and the website
address www.RipoffReport.com, the CDA is not implicated because Defendants
agree they created that material. However, this does not mean that summary
judgment should be denied. On the contrary, and bearing in mind that these same
facts were present in every past case in which summary judgment was granted in
favor of Defendants, summary judgment is still appropriate because taken in
context the term Ripoff Report is simply not defamatory as to Plaintiffs or to
anyone else.
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First, as a matter of law, except in cases where the term implies the existence
ofundisclosedfacts which could be defamatory, the phrase rip-off is generally
an expression of opinion, not fact, and for that reason the term cannot support a
claim for defamation under Georgia law. SeeJaillett v. Georgia Television Co.,
238 Ga.App. 885, 891 (Ga.App. 1999) (holding the term rip off was an opinion
incapable of supporting a defamation claim); Fuhrman v. EDS Nanston, Inc., 225
Ga.App. 190, 192, 483 S.E.2d 648 (Ga.App. 1997) (explaining, The expression of
opinion on matters with respect to which reasonable men might entertain differing
opinions is not slanderous.); see also Phantom Touring, Inc. v. Affiliated Pub.,
953 F.2d 724 (1st Cir. 1992) (article referring to an obscure production ofPhantom
of the Opera as a fake, rip-off and a fraud was non-actionable opinion);
Beilenson v. Superior Court, 44 Cal.App.4th 944, 52 Cal.Rptr.2d 357 (2nd Dist.
1996) (finding statement in mailer accusing state official of rip[ping] off
constituents was colorful epithet, [which] when taken in context with the other
information contained in the mailer, was rhetorical hyperbole .); Horowitz v.
Baker, 168 Ill.App.3d 603, 608, 523 N.E.2d 179, 182-183, 119 Ill.Dec. 711, 714 -
715 (Ill.App. 3 Dist. 1988) (finding use of the terms sleazy, cheap, pull a fast
one, secret and rip-off was non-actionable as rhetorical hyperbole.);
Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 379-380, 522 N.E.2d 959,
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962 (Mass. 1988) (statements accusing plaintiffs of being insurance crooks,
engaged in insurance fraud and blatant and dramatic schemes ... to rip-off
Massachusetts policyholders, was non-actionable expression of opinion); Rizzuto
v. Nexxus Products Co., 641 F.Supp. 473, 477 (S.D.N.Y. 1986) (statements
accusing plaintiff of being just another company trying to RIP YOU OFF! and
warning DONT LET THEM RIP YOU OFF! were non-actionable opinions
because even the most careless reader must have perceived that the word[s were]
no more than rhetorical hyperbole, a vigorous epithet used by those who
considered themselves unfairly treated and sought to bring what they alleged were
the true facts to the readers.) (quoting Greenbelt Cooperative Publishing Ass'n v.
Bresler, 398 U.S. 6, 14, 90 S. Ct. 1537, 1541, 26 L.Ed.2d 6 (1970)); Telephone
Systems Intl, Inc. v. Cecil, 2003 WL 22232908 (S.D.N.Y. 2003) (The defamatory
statements, as alleged, are that Bayat said that Bentham and/or Cecil were ripping
him off. These statements are figurative and hyperbolic, and are not capable of
being disproved.)
Second, as a factual matter, the term Ripoff Report, the website address
www.RipoffReport.com and the general slogans appearing on the site (i.e., Dont
let them get away with it!) are not defamatory as to Plaintiffs because these
statements are not about Plaintiffs; they are merely the name of the website
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operated by Defendants, not expressions of fact aboutPlaintiffs. Indeed, Rip-off
Report is Defendants trademark registered with the United States Patent &
Trademark Office. DSOF 24. In order to establish a claim for defamation, the
plaintiff has the burden of showing, inter alia, that the publication was about the
plaintiff, that is, whether it was of and concerning her as a matter of identity.
Smith v. Stewart, 291 Ga.App. 86, 660 S.E.2d 882 (Ga.App. 2008) (quoting Pring
v. Penthouse Intl., 695 F.2d 438, 439 (10th Cir. 1982)).
Even if the phrase Ripoff Report referred specifically to Plaintiffs (which
it does not), the term ripoff is a common epithet conveying the speakers
subjective opinion which cannot be conclusively proven true or false. Viewed in
context, no reasonable reader could conclude that the use of the term Ripoff
Report implies the existence of other undisclosed facts beyond the true fact that a
report has been posted on the website www.RipoffReport.com. This is particularly
so given that the front page of the website clearly explains that the term ripoff
refers to a consumers opinion which should NOT be relied upon as fact:
Consumers, just because a company or individual is reported on Rip-
off Report does not necessarily mean you should not do business withthem. In many cases, its just the opposite. Just because a companyis posted on Rip-off Report does not mean they are bad. At somepoint in time, everyone has felt like theyve been ripped off, whenthat may not have been the case. Not everything published on theInternet, or local newspapers, or local TV news is always true. Many
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stories, no matter where you see them, may have a bias slant. Beingshort on space or only having less than 2 minutes to do a story where
important facts are left out can change the entire story. Rip-off Reportfeels consumers reading the unedited experiences of other consumers,without editorial involvement, are getting the best consumeropinion/news available.
SOF 24 (emphasis added). Under these circumstances, no reasonable reader
would believe that the application of the term Ripoff Report implies the
existence of any facts beyond those contained in the specific report(s) appearing on
the site. Ripoff Report clearly discloses to readers that reports on the site are the
opinions of the author, are notverified for accuracy, and should notdiscourage the
reader from patronizing the reported business. Whether or not it may have a
negative connotation, taken in context the undisputed facts show the term ripoff
is simply an expression of opinion which is not actionable as a matter of law.
Although the exact issue presented has not been addressed before in
previous cases involving Defendants, an analogous concept was considered and
rejected by the District Courts decision in Global Royalties, Ltd. v. Xcentric
Ventures, LLC, 544 F.Supp.2d 929 (D.Ariz. 2008). There, the plaintiff argued that
Xcentric and Magedson encourage defamatory postings from others for their own
financial gain and, therefore, are partly responsible for the creation or
development of the messages [posted by users of the site]. Global Royalties, 544
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F.Supp.2d at 93233. In an opinion rejecting this argument, the District Court
explained, It is obvious that a website entitled Ripoff Report encourages the
publication of defamatory content. However, there is no authority for the
proposition that this makes the website operator responsible, in whole or in part,
for the creation or development of every post on the site. Id. at 933 (emphasis
added). For this reason, the Global Royalties court agreed that Defendants were
entitled to immunity under the CDA.
As the court held in Global Royalties, generic aspects of the Ripoff Report
site (such as its name and web address) may be negative and/or derogatory, but
ultimately the decision to post a complaint about someone on the site originates
entirely with the author who creates the complaint, not Defendants. Here, there is
no evidence and no allegation that Defendants specifically solicited John Doe to
create the report about Plaintiffs because they simply did not do so. The decision
to create the report about Plaintiffs originated entirely within the mind of the
author, and to the extent anything in the report is inaccurate, Plaintiffs remedy is
against the author, not against Xcentric or Magedson; under 230, plaintiff may
not seek recourse against [the website operator] as publisher of the offending
statements; instead, plaintiff must pursue his rights, if any, against the offending
[website] members themselves. Noah v. AOL Time Warner, Inc., 261 F.Supp.2d
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532, 540 (E.D.Va. 2003) (citing Ben Ezra, Weinstein, & Co. v. America Online,
Inc., 206 F.3d 980, 986 (10
th
Cir. 2000)).
Plaintiffs cannot overcome this result merely by pointing to minute aspects
of website code or Defendants creation of indexing tags used to make the Ripoff
Report site easier to find in search engines such as Google. Such efforts to
generally augment content from a third party is insufficient to defeat the CDAs
robust immunity; a website operator does not become liable as an information
content provider merely by augmenting the content [of online material]
generally. Goddard v. Google, Inc., 640 F.Supp.2d 1193, 1198 (N.D.Cal. 2009)
(brackets in original) (quoting Roommates, 521 F.3d at 116768)). The same is
true here.
IV. CONCLUSIONThe material facts of this case are not disputed. A third party posted a
derogatory complaint about Plaintiffs on the Ripoff Report website. This is
undisputed. The complaint was not created by Defendants nor was it altered in
any material way. This is undisputed. Defendants created the website name
www.RipoffReport.com, generic code such as meta tags rip-off, ripoff, and rip
off, and the general slogans which appear on the site. This is undisputed.
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Based on these undisputed facts, Defendants are entitled to summary
judgment in their favor as to any/all statements contained in the body of the report
as described in Paragraph 39 of the First Amended Complaint and the title of the
report as described in Paragraph 40 of the FAC. There is no dispute that
Defendants did not create any of this information, and as such, the CDA precludes
Plaintiffs from imposing liability upon Defendants for the accuracy of these
statements. To the extent Defendants did create content such as the website name
Ripoff Report and the website address www.RipoffReport.com, these statements
are not actionable because they are not statements of and concerning Plaintiffs
and the term ripoff is simply an opinion, not a statement of fact.
For the above reasons, Defendants move the Court for an order granting
them summary judgment as to all claims in this case pursuant to Fed. R. Civ. P. 56.
Respectfully submitted this 17th day of August, 2010.
/s Megan K. OuztsCameron Hill, Esq.GA Bar No. 353447Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.1800 Republic Centre
633 Chestnut StreetChattanooga, Tennessee 37450-1800Phone: (423) 209-4160Fax: (423) [email protected]
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Megan Kreitner Ouzts, Esq.GA Bar No. 142654
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.Monarch Plaza, Suite 16003414 Peachtree Road, N.E.Atlanta, Georgia 30326-1164Phone: (678) 406-8736Fax: (678) [email protected]
Maria Crimi Speth, Esq.Arizona Bar No. 012574
Jaburg & Wilk, P.C.3200 North Central Ave., Suite 2000Phoenix, AZ 85012Tel: (602) 248-1000Fax: (602) 248-0522Email: [email protected]
Admitted Pro Hac Vice
David Gingras, Esq.
Arizona Bar No. 021097Xcentric Ventures, LLCPO BOX 310Tempe, AZ 85280Tel.: (480) 668-3623Fax: (480) 639-4996Email: [email protected]
Admitted Pro Hac Vice
Attorneys for Defendants
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CERTIFICATE OF COMPLIANCE
Undersigned counsel certifies the foregoing document has been preparedwith one of the font and point selections (Times New Roman, 14 point) approvedby the Court in Local Rule 5.1(c) and 7.1(D).
August 17, 2010 /s Megan K. OuztsDate Attorney for Defendants
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HERMAN & RUSSO, P.C.;MELISSA A. HERMAN;DAVID A. RUSSO,
Plaintiffs,
v.
XCENTRIC VENTURES, LLC, andEDWARD MAGEDSON, and JOHN
OR JANE DOE,
Defendants.
Case No: 10-CV-0398-CAP
CERTIFICATE OF SERVICE
I hereby certify that I have this day caused to be served the foregoingDEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIRMOTION FOR SUMMARY JUDGMENT by filing a copy of same via theCourt's CM/ECF system, which will automatically send notification to the
following attorney(s) of record for Plaintiffs:
Melissa A. Herman, Esq.David A. Russo, Esq.225 Creekstone RidgeWoodstock, GA 30188
8/17/2010 /s Megan K. Ouzts
Date Attorney for Defendants
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