Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 1 of 33

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
DANIEL PARISI, et al., )
)
Plaintiffs, )
)

et
v. ) No. 1:10-cv-0897-RJL
)
LAWRENCE W. SINCLAIR a/k/a “Larry Sinclair”, )

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et al., )
)
Defendants. )
)

or
PLAINTIFFS’ OPPOSITION TO B&N’S MOTION FOR SUMMARY JUDGMENT
at
Richard J. Oparil (D.C. Bar No. 409723)
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PATTON BOGGS LLP
2550 M Street, NW
Washington, DC 20037
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(202) 457-6000
(202) 457-6315 (fax)

Kevin M. Bell
PATTON BOGGS LLP
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8484 Westpark Drive

McLean, VA 22102
(703) 744-8000
(703) 744-8001 (fax)
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Dated: November 8, 2010 Attorneys for Plaintiffs

PDF processed with CutePDF evaluation edition www.CutePDF.com

 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 2 of 33

TABLE OF CONTENTS

STATEMENT OF FACTS ............................................................................................................. 1

ARGUMENT.................................................................................................................................. 6

I. THE CDA DOES NOT APPLY TO SALES OF A HARDCOVER OR

PAPERBACK VERSION OF SINCLAIR’S BOOK. ........................................................ 6

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II. B&N IS LIABLE FOR ITS OWN ACTIONS TAKEN AFTER IT RECEIVED
PLAINTIFFS’ DRAFT COMPLAINT AND WAS SERVED WITH THE
COMPLAINT. .................................................................................................................. 11

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A. B&N Had Actual Knowledge Of Plaintiffs’ Claims But Continued To Sell
Sinclair’s Book.......................................................................................................13

or
B. Whether B&N Had Notice Of The Defamatory Nature Of Sinclair’s Book
In 2009 And Yet Continued To Sell It Is A Question Of Fact. .............................13

III. at
LIABILITY BASED ON B&N’S PRODUCT DESCRIPTION THAT IT USED
TO PROMOTE AND SELL SINCLAIR’S BOOK IS NOT BARRED BY THE
COMMUNICATIONS DECENCY ACT......................................................................... 18
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A. There Is An Issue Of Material Fact As To Plaintiffs’ Allegation That B&N
Is Responsible For The Defamatory Product Description. ....................................18
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B. B&N Adopted The Product Description As Its Own.............................................20

IV. THE CDA DOES NOT BAR PARISI’S RIGHT OF PUBLICITY AND FALSE
LIGHT CLAIMS. ............................................................................................................. 23
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CONCLUSION............................................................................................................................. 26
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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 3 of 33

TABLE OF AUTHORITIES

Cases

Allison v. Vintage Sports Plaques,

136 F.3d 1443 (11th Cir. 1998) ...............................................................................................24

Almeida v. Amazon.com, Inc.,

et
456 F.3d 1316 (11th Cir. 2006) ..........................................................................................11, 24

Anthony v. Yahoo, Inc.,

421 F. Supp. 2d 1257 (N.D. Cal. 2006) ...................................................................................21

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Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002).................................................................................................................11

or
Atlantic Recording Corp. v. Project Playlist, Inc.,
603 F. Supp. 2d 690 (S.D.N.Y. 2009)......................................................................................23

Batzel v. Smith, at
333 F.3d 1018 (9th Cir. 2003) ................................................................................................7, 8

Blumenthal v. Drudge,
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992 F.Supp. 44 (D.D.C. 1998) ...............................................................................................7, 9

Brandewyne v. Author Solutions, Inc.,

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Mem. Decision, Case No. 04-CV-4363 (18th Judicial Dist. Ct., Kansas Aug. 3, 2006) .........17

Church of Scientology. v. Minnesota State Med. Ass’n,

264 N.W.2d 152 (Minn. 1978)...........................................................................................13, 16
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Comedy III Prods., Inc. v. Gary Saderup, Inc.,

25 Cal.4th 387, 106 Cal. Rptr. 2d 126 (2001)..........................................................................24

Curran v. Amazon.com, Inc.,

2008 U.S. Dist. LEXIS 12479 (S.D. W. Va. Feb. 19, 2008) .............................................11, 15
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Doe v. Friendfinder Network, Inc.,

540 F. Supp. 2d 288 (D.N.H. 2008).............................................................................23, 24, 25

Donato v. Moldow,
374 N.J. Super. 475 (App. Div. 2005) .....................................................................................21

Dworkin v. Hustler Magazine, Inc.,

611 F. Supp. 781 (D. Wyo. 1985)............................................................................................12

ETW Corp. v. Jireh Publ’g, Inc.,

332 F.3d 915 (6th Cir. 2003) ...................................................................................................24

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 4 of 33

Fair Housing Council of San Fernando Valley v. Roommates.com,

LLC, 521 F.3d 1157 (9th Cir. 2008)...........................................................................................7

FTC v. Accusearch, Inc.,

2007 U.S. Dist. LEXIS 74905 (D. Wyo. Sept. 28, 2007) ..................................................10, 22

Gentry v. eBay, Inc.,

99 Cal. App. 4th 816, 121 Cal.Rptr.2d 703 (2002)....................................................................9

et
Gucci Am., Inc. v. Hall & Assocs.,
135 F. Supp. 2d 409 (S.D.N.Y. 2001)......................................................................................23

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Hartman v. Am. News Co.,
171 F.2d 581 (7th Cir. 1948) ...................................................................................................12

or
Hill v. StubHub, Inc.,
Ord. and Op. at 7, No. 07-CVS-11310 (N.C. Super. Ct. Aug. 25, 2010) ..................................7

Hy Cite Corp. v. Badbusinessbureau.com, L.L.C.,

at
418 F. Supp. 2d 1142 (D. Ariz. 2005) .....................................................................................22

Janklow v. Viking Press,

378 N.W.2d 875 (S.D. 1985) ...................................................................................................13
ul
Lerman v. Chuckleberry Pub., Inc.,
521 F. Supp. 228 (S.D.N.Y. 1981).....................................................................................12, 14
eg

Lewis v. Time Inc.,

83 F.R.D. 455 (E.D. Cal. 1979) ...............................................................................................12

Milo v. Martin,
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311 S.W.3d 210 (Tex. Ct. App. 2009) .....................................................................................22

Osmond v. EWAP, Inc.,

153 Cal. App. 3d 842, 200 Cal. Rptr. 674 (1984)..............................................................12, 16
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Pasqualini v. MortgageIT, Inc.,

498 F. Supp. 2d 659 (S.D.N.Y. 2007)......................................................................................21

Perfect 10, Inc. v. CCBill LLC,

488 F.3d 1102 (9th Cir. 2007) .................................................................................................23

Philips Electronics N. Am. Corp. v. Hope,

631 F. Supp. 2d 705 (M.D.N.C. 2009) ....................................................................................20

Rice v. Rose & Atkinson,

176 F. Supp. 2d 585 (S.D. W.Va. 2001)..................................................................................21

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 5 of 33

Smith v. California,
361 U.S. 147 (1959).................................................................................................................14

United States v. Ramsey,

503 F. Supp. 2d 554 (N.D.N.Y. 2007).....................................................................................20

Universal Comm’n Sys., Inc. v. Lycos, Inc.,

478 F.3d 413 (1st Cir. 2007)....................................................................................................23

et
Vassiliades v. Garfinckel's,
492 A.2d 580 (D.C. 1985) .......................................................................................................26

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Villalovos v. Sundance Assocs., Inc.,
2003 U.S. Dist. LEXIS 387 (N.D. Ill. Jan. 13, 2003) ..............................................................25

or
Ware v. Nicklin Assocs., Inc.,
580 F. Supp. 2d 158 (D.D.C. 2008) .........................................................................................15

Whitney Information Network, Inc. v. Xcentric Ventures, LLC,

at
2006 U.S. App. LEXIS 19518 (11th Cir. Aug. 1, 2006) ...................................................18, 19

Zacchini v. Scripps-Howard Broad. Co.,

433 U.S. 562 (1977).................................................................................................................24
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Statutes
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47 U.S.C. § 230...................................................................................................................... passim

47 U.S.C. § 230(b) ...........................................................................................................................6

47 U.S.C. § 230(f)(3) .....................................................................................................................20

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47 U.S.C.A. 230(e)(3)....................................................................................................................21

Rules

Fed. R. Civ. P. 12(b)(6)..................................................................................................................25

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Fed. R. Civ. P. 56(f).......................................................................................................................20

Fed. R. Civ. P. 56(f).......................................................................................................................15

Other Authorities

4 J. McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 28.1 (4th ed.

2003) ........................................................................................................................................24

BLACK’S LAW DICTIONARY 813 (7th ed. 1999) .............................................................................24

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M. Minora, Comment: Rumor has it that Non-Celebrity Gossip Web Site Operators are
Overestimating their Immunity Under the Communications Decency Act CommLaw
Conspectus 821, 868 (2009) ....................................................................................................25

Note, An Interpretive Framework for Narrower Immunity Under Section 230 of the
Communications Decency Act Harv. J. of Law & Pub. Policy 863, 879-82 (2010)................21

PROSSER AND KEETON ON THE LAW OF TORTS § 113 at 810 (5th ed. 1984) ..................................12

et
RESTATEMENT (SECOND) OF TORTS § 581 .........................................................................12, 13, 16

RESTATEMENT (SECOND) OF TORTS § 652C...................................................................................25

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or
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Plaintiffs, Daniel Parisi (“Parisi”), Whitehouse.com Inc., Whitehouse Network LLC

(“WNL”), and White House Communications Inc. (“WCI”) (collectively referred to as

“plaintiffs”), opposes the motion for summary judgment filed by defendants Barnes & Noble,

Inc. and Barnesandnoble.com LLC (collectively “B&N”). Contrary to B&N’s argument, the

et
Communications Decency Act (“CDA”), 47 U.S.C. § 230, does not bar plaintiffs’ claims against

B&N, including those in connection with B&N’s sales of the book in hardcover and paperback

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editions, and those relating to its conduct in continuing to promote, offer for sale, and sell the

defamatory book.

or
STATEMENT OF FACTS

To avoid burdening the Court, plaintiffs incorporate the procedural history and statement
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of facts in their August 25, 2010 opposition to BAM’s motion to dismiss and the October 15
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opposition to Amazon’s motion for summary judgment. (Dkt. Nos. 43, 61).1

Plaintiffs’ claims against the defendants, including B&N, relate to Sinclair’s June 2009
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book entitled Barack Obama & Larry Sinclair: Cocaine, Sex, Lies & Murder? (referred to as

“the book” or “Sinclair’s book” (copy at Dkt. No. 61 Decl. Ex. 1)), the forward to the book
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written by Rense, and related statements. It is undisputed that B&N disseminated Sinclair’s

book in paper – hardcover and paperback – not disseminated on the internet. B&N has offered

for sale and sold Sinclair’s book throughout the United States, including in the District of
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Columbia. (Declaration of Richard J. Oparil (“Decl.”) Exs. A-D). B&N sold the book in D.C.

through electronic orders and via one of its D.C. bookstores. (Exs. E-H). The customer buys

1
Plaintiffs served the summons and complaint on B&N on June 8, 2010. (Dkt. No. 6).
B&N answered the complaint on August 24. (Dkt. No. 42). B&N also cross-claimed against
Sinclair and SPI for indemnification, pursuant to an alleged June 8, 2010 indemnification
agreement. (Id. & Ex. 2 thereto). On June 21, Sinclair accused B&N of engaging in “extortion”
(Decl. Ex. T).
 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 8 of 33

the book from B&N, pays B&N, and B&N provides or ships the book. (Id.). The parties to the

transaction are B&N and the customer, not a third-party.

The front cover of Sinclair’s book shows a picture with crime scene tape and Obama with

blood on his hands. The back cover of the book states that Sinclair was blackballed by book

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publishers:

Virtually everyone has heard about Larry Sinclair and his

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allegations regarding a couple of days he spent with Barack Obama
in Chicago in 1999. After a highly orchestrated whitewashing by
the mainstream media of the story, and after being blackballed by
every single book publisher he contacted regarding the

or
publication of his story, Larry Sinclair decided to start his own
publishing company, and this is the first book from Sinclair
Publishing.

(Dkt. No. 61, Decl. Ex. 1, emphasis added).

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B&N promoted the Sinclair book by writing that: “You'll read how the Obama campaign
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used internet porn king Dan Parisi and Ph.D. fraud Edward I. Gelb to conduct a rigged polygraph
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exam in an attempt to make the Sinclair story go away.” (Dkt. No. 1 ¶ 39).

Evidence adduced by plaintiffs without the benefit of any discovery shows that B&N was

made aware of Sinclair and the nature and contents of his book long before this suit was filed.
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For example, on February 15, 2009, Sinclair contacted B&N regarding a Georgia store’s alleged

refusal to sell Sinclair’s book because of its content. Sinclair recorded the telephone
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conversation. (Decl. Ex. H & X, Audio tape filed with the Court).

On February 26, 2009, B&N was informed that a print on demand company, Aardvark,

had refused to publish and distribute Sinclair’s book. (Decl. Ex. J p.16 of 77; see also id. p.18 of

77 (“I would almost guess that Barnes & Noble is REAL sick of Sinclair by now…. I mean they

have deleted almost half of the comments left on their book review website, and now they may

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have to delete their Sinclair book page entry, delete orders and then send emails to their

customers, that they won’t be receiving an order.”)).

One well-known blogger wrote on March 22, 2009 (before the book was published) that:

I just sent an email to Mary Ellen Keating, Senior Vice President,

Corporate Communications for Barnes & Noble:

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“I am writing to you from the Citizen Wells blog. I receive a high
rate of readership. I have followed closely events of the 2008

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election and have covered the Larry Sinclair story more than any
other source. This includes, but is not limited to, all of the hate
filled attacks on Mr. Sinclair as well as myself and many others. I
have posted an article regarding the comments you have allowed

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and the one by me that was removed. I am contacting you out of a
sense of fairness and seeking the truth. I noticed your reaction to a
tampering episode at B&N that was perceived as hate motivated….
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Please read the article I posted regarding Larry Sinclair’s treatment
on your website.
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I will post your response if you desire.

Sincerely,
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Mr. Wells”

(Decl. Ex. K p.4 of 45).

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In July 2009, Sinclair had a discussion with his “Barnes & Noble Representative”

regarding his book. (Decl. Ex. L p.21 of 49). The same month, Sinclair complained to B&N

regarding the alleged removal of reviews of his book by B&N. A July 16, 2009 web post
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represented that:

BARNES & NOBLE EMPLOYEE RESPONSIBLE FOR

REMOVING ACTUAL BOOK REVIEWS

The actual reviews of the Book, Barack Obama & Larry Sinclair:
Cocaine, Sex, Lies & Murder? submitted by individuals who have
actually received a copy of the book and read it, which have been
removed from BN.com (while the fake reviews which violate
BN.com’s TOS remain), were removed by an employee of Barnes
& Noble associated with bloggers.

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Barnes and Noble is currently investigating the matter and

according to them, are capable of identifying the employee or
employee’s responsible for removing reviews. In addition Barnes
& Noble Corporate has been contacted concerning BN.com’s acts
which are clearly intended to harm Sinclair Publishing, Inc and the
sales of its Titles. Below is yet another BN.com removal of actual
review.

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(Decl. Ex. M, p.52 of 60; see also Decl. Ex. W).

On July 19, 2009, Sinclair wrote that:

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IF YOU WAIT LONG ENOUGH, THE OBAMA BLOGGERS
CUT THEIR OWN THROATS

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This evening I received a pdf file from a website where the Obama
bloggers admit that they have been spamming Barnes & Noble
website with fake reviews and rating the book as low as possible to
try and prevent people from ordering the book.
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In this same file these same Bloggers have admitted to trying to
find “back door entry” into another individuals blog (which by the
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way is also known as “hacking”) which has been sent to the owner
of that website.

I have forwarded to the legal department at Barnes & Noble and

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Amazon.com the pdf file as well. I welcome honest reviews based

on having actually read the Book. Sadly the Obama people do not
know what honest anything is, and the pdf file this evening
demonstrates that in living color.
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I am pleased that both Barnes & Noble and Amazon.com have the
Book, Barack Obama & Larry Sinclair: Cocaine, Sex, Lies &
Murder?

Posted By Larry Sinclair at 9:12 PM

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(Decl. Ex. N p.71 of 88).

In a video he posted on YouTube on July 31, 2009, Sinclair expressly stated that he was

engaged in the process of having B&N carry his book on the store shelves. (Decl. ¶ 27 & Ex. Y,

Video filed with the Court). He explained that B&N does not directly put a new book on its

shelves. There is a process, which entails the publisher providing a copy of the book to B&N's

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corporate office a marketing plan with a letter explaining what makes the book unique and a

book that B&N will be able to sell. Sinclair stated that he was preparing the documentation for

B&N and that it will be sent to its New York Office. He assured that: "We will get the book in

the stores." (Id.).

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B&N does have submission guidelines for the review and acceptance of new books. In

pertinent part, the guidelines state that:

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If you would like your title to be considered by our buyers, please
submit a finished copy (no manuscripts please) of the book along
with marketing and promotion plans, trade reviews, and a note

or
describing how the book meets the competition (what makes it
unique) to: [B&N] . . . . The information must include the ISBN
and the suggested retail price. The review process takes about six
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weeks. . . . All books will be considered for store placement based
on subject matter and salability, provided the supplier submits a
completed and signed Vendor Compliance Certification Form.
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(Dkt. No. 1 ¶ 40; Decl. Ex. O). In addition, B&N also has guidelines providing that:

Why should Barnes & Noble place your title on its shelves?
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Tell us what makes your book unique or special. What is your

marketing plan? Send us your publicity and promotional plans,
along with any reviews or articles that may have been written
about your book(s).
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(Dkt. No. 1 ¶ 40; Decl. Ex. P).

Further, B&N’s own counsel conceded that “Sinclair’s allegations, and the interactions
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between Parisi, Whitehouse.com and Sinclair were also widely-publicized” (Decl. Ex. Q, May

26, 2010 letter at 2-3 & n.2, emphasis added).

Prior to the filing of this action, B&N was made aware of the alleged defamatory

statements, but continued to offer for sale and sell Sinclair’s book. (Dkt. No. 1 ¶ 49). On May

18, 2010, plaintiff’s counsel sent a letter to B&N’s General Counsel, with a draft complaint

alleging defamation and related claims against B&N relating to the Sinclair book. (Decl. Ex. R).

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Plaintiffs filed the complaint on May 28 and served B&N on June 7. (Dkt. No. 16). B&N

continued to sell Sinclair’s book for about a month after service. (Dkt. No. 61-1, Decl. ¶ 26).

ARGUMENT

I. THE CDA DOES NOT APPLY TO SALES OF A HARDCOVER OR

PAPERBACK VERSION OF SINCLAIR’S BOOK.

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The CDA does not bar plaintiffs’ claims against B&N related to the sale of the hardcover

and paperback editions of Sinclair’s defamatory book. Significantly, nothing in B&N’s

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declaration or statement of facts states that B&N did not sell and deliver paper copies of the book

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to purchasers. As shown above, a customer buys Sinclair’s book from B&N, pays B&N, and

B&N provides or ships the book. (Decl. Exs. E-H). A retailer who acts as the merchant of third
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party goods should be liable for selling those goods, even if the goods were acquired for resale

from third parties. The CDA does not – and should not – protect a retailer from selling goods for
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its own account, as B&N did here.
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The CDA does not apply to claims arising from the sale of a tangible product, in this case

a hardcover or paperback book. The express objective of the CDA is the “continued

development of the Internet….” 47 U.S.C. § 230(b). The CDA confers immunity against
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defamation-related liability for those who use the internet to publish information that originated

from other source. Here, the hardcover and paperback editions of Sinclair’s book were not
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posted or published on the internet – they were sent through the mail or by other non-electronic

shipping companies to consumers. Accepting B&N’s argument would excessively and

improperly expand the CDA to cover transactions involving the sale and purchase of tangible

goods, i.e., the Sinclair hardcover and paperback books.. The CDA provides that “[n]o provider

or user of an interactive computer service shall be treated as the publisher or speaker of any

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information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The

CDA further provides that:

No provider or user of an interactive computer service shall be held liable

on account of—

(A) any action voluntarily taken in good faith to restrict access to or

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availability of material that the provider or user considers to be obscene,
lewd, lascivious, filthy, excessively violent, harassing, or otherwise
objectionable, whether or not such material is constitutionally protected;

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or

(B) any action taken to enable or make available to information content

providers or others the technical means to restrict access to material

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described in paragraph (1).

Id. § 230(c)(2). The phrase “interactive computer service” is defined as “any information
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service, system, or access software provider that provides or enables computer access to the

Internet and such systems operated or services offered by libraries or educational institutions.”
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Id. § 230(f)(2). The phrase “information content provider” is defined as “any person or entity
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that is responsible, in whole or in part, for the creation or development of information provided

through the Internet or any other interactive computer service.” Id. § 230(f)(3).

It is undisputable that B&N sold hardcover and paperback versions of Sinclair’s book.2
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(Decl. Exs. A-H). The CDA cannot apply to the tangible books because that was not content

made publicly available on the internet. Fair Housing Council of San Fernando Valley v.
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Roommates.com, LLC, 521 F.3d 1157, 1167-68 (9th Cir. 2008); Batzel v. Smith, 333 F.3d 1018,

1026-27 (9th Cir. 2003) (“Absent § 230, a person who published or distributed speech over the

Internet could be held liable for defamation”) (emphasis added); Blumenthal v. Drudge, 992

F.Supp. 44, 49 (D.D.C. 1998) (Congress “opted not to hold interactive computer services liable

2
B&N controlled whether it shipped hardcover or paperback books to its customers. See
Hill v. StubHub, Inc., Ord. and Op. at 7, No. 07-CVS-11310 (N.C. Super. Ct. Aug. 25, 2010)
(Dkt. No. 61-1, Decl. Ex. 22).

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 14 of 33

for their failure to edit, withhold or restrict access to offensive material disseminated through

their medium.”) (emphasis added).

Batzel clearly holds that the distributor of material published in paper rather than online

has no CDA immunity:

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One would not say, for example, that the author of a
magazine article "provided" it to an interactive computer service
provider or user by allowing the article to be published in hard

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copy off-line. Although such an article is available to anyone with
access to a library or a newsstand, it is not "provided" for use on
the Internet.

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The result in the foregoing example should not change if
the interactive computer service provider or user has a subscription
to the magazine. In that instance, the material in question is
"provided" to the "provider or user of an interactive computer
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service," but not in its role as a provider or user of a computer
service. The structure and purpose of § 230(c)(1) indicate that the
immunity applies only with regard to third-party information
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provided for use on the Internet or another interactive computer
service. As we have seen, the section is concerned with providing
special immunity for individuals who would otherwise be
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publishers or speakers, because of Congress's concern with

assuring a free market in ideas and information on the Internet. If
information is provided to those individuals in a capacity unrelated
to their function as a provider or user of interactive computer
services, then there is no reason to protect them with the special
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statutory immunity.

So, if, for example, an individual who happens to operate a website

receives a defamatory "snail mail" letter from an old friend, the
website operator cannot be said to have been "provided" the
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information in his capacity as a website service. Section 230(c)(1)

supplies immunity for only individuals or entities acting as
"provider[s]" or "user[s]" of an "interactive computer service," and
therefore does not apply when it is not "provided" to such persons
in their roles as providers or users.

Batzel, 333 F.3d at 1032-34. “Free speech and the development of the Internet are not

‘promote[d]’ by affording immunity when providers and users of ‘interactive computer

service[s]’ knew or had reason to know that the information provided was not intended for

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 15 of 33

publication on the Internet.” Id. at 1033-34. The Court also found that “immunizing a publisher

or distributor for including content not intended for Internet publication increases the likelihood

that obscene and defamatory material will be widely available.” Id. at 1034. “The congressional

objectives in passing § 230 therefore are not furthered by providing immunity in instances where

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posted material was clearly not meant for publication.” Id.

The decision in Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 121 Cal.Rptr.2d 703 (2002),

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is not to the contrary. There, a group of plaintiffs who purchased sports memorabilia bearing

forged autographs using eBay’s auction website. eBay essentially acts as an internet

or
intermediary between a seller of goods and the buyer. Id. at 820-21 (“eBay promotes itself as the

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world's largest on-line marketplace for the sale of goods and services among its registered users.

It operates an Internet-based service in which it enables member sellers to offer items for sale to
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member buyers in what eBay characterizes as either auction-style or fixed price formats.”)

(footnote omitted). The buyer pays the seller and the seller ships the goods to the buyer. The
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Court agreed with eBay that it does not sell or offer to sell collectibles because … it is in fact the

individual defendants who sold the forged items to appellants [individual buyers].” Id. at 826-
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27. Gentry found that on these facts, CDA immunity applied to eBay.

That is not how B&N sold Sinclair’s book, however. As discussed, a purchaser of

Sinclair’s book buys the book from B&N, pays B&N directly, and B&N delivers the book
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directly to the buyer, either in its books or by shipment. (Decl. Exs. E-H). B&N is not acting as

an intermediary; it is acting for itself.3 This is not the situation involving an intermediary that

operates using the internet.

3
Plaintiffs have not yet had any discovery as to the contractual obligations and amounts
paid to Sinclair or his publisher, SPI, by B&N after a book is sold. (Decl. ¶ 29). Plaintiffs
believe, however, that discovery will further bolster their argument on this point.

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The decision in FTC v. Accusearch, Inc., 2007 U.S. Dist. LEXIS 74905 (D. Wyo. Sept. 28,

2007), is instructive. There, the Federal Trade Commission (FTC) sued Accusearch, Inc. d/b/a

Abika.com and its president and owner, alleging that they in unfair business practices by

obtaining and selling confidential customer phone records without the affected customers'

et
authorization. Abika.com is a website that has offered for retail sale to its customers a variety of

information products, including records of telephone calls. The FTC alleged that the website

.n
purchased these records from vendors and then resold them to Abika.com customers. Id. at *3.

Defendants characterized the Abika.com website as "an interactive person-to-person search

or
engine" and argued that they were a mere conduit of the telephone records at issue. The parties

at
cross moved for summary judgment. Defendant based their motion on the CDA’s immunity

provisions. The Court denied the defendants’ motion and granted the FTC’s, finding that finds
ul
that “application of the CDA to the facts of this case would expand Section 230 immunity well

beyond its intended scope[.]” Id. at *8. “Defendants advertised the availability of phone
eg

records, solicited orders, purchased the records from third-party sources for a fee, and then resold

them to the end-consumers.” Id. at *14. The Court went on to rule that the “phone records at
eR

issue in this case clearly were ‘created’ (at least originally) by various telephone companies for

lawful purposes. As a result of Defendants’ business efforts, they were subsequently

misappropriated and ultimately transmitted via Defendants’ website to end-consumers. While

Th

Defendants made admittedly few changes to the records themselves, the Court finds that by

soliciting requests for such phone records and purchasing them for resale” and CDA immunity

did not apply. Id. at *16.

On the undisputable facts present here, B&N’s conduct is not immunized by the CDA. It

is undisputed that B&N disseminated tangible paper copies of Sinclair’s book. The hardcover

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 17 of 33

and paperback versions of that book, by definition, were not intended for publication on the

Internet or otherwise online. Nor did B&N distribute the contents of Sinclair’s book

electronically on the internet. Customers bought books directly from B&N for in-person pickup

in stores or through delivery; no third-party was involved. The CDA does not immunize B&N

et
for liability incurred in distributing the tangible book. Any contrary ruling would be error and

vastly expand the scope of the CDA in ways Congress did not intend. Therefore, B&N’s

.n
summary judgment motion should be denied.

II. B&N IS LIABLE FOR ITS OWN ACTIONS TAKEN AFTER IT RECEIVED

or
PLAINTIFFS’ DRAFT COMPLAINT AND WAS SERVED WITH THE
COMPLAINT.

While B&N tries to portray itself as the last bastion of free speech, it is a for-profit
at
corporation. Moreover, “[t]he freedom of speech has its limits; it does not embrace certain
ul
categories of speech, including defamation….” Ashcroft v. Free Speech Coalition, 535 U.S. 234,

246 (2002).
eg

The distributor of a book, including a bookseller, may be liable for defamation and

related torts. Once a distributor has knowledge of the tortious nature of the material within its
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possession or control, it must stop making the material available to others or face liability. This

knowledge can be actual, as in the case of material that is defamatory on its face, or inferred, as

may be the case when a particular author or publisher has published notoriously sensational or
Th

scandalous material.

It is undisputed that B&N was a distributor, i.e., bookseller, of the Sinclair book. There

can be no doubt that B&N promoted, offered for sale and sold Sinclair’s book. (Decl. Exs. A-H;

Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1325 (11th Cir. 2006) (Amazon is “an internet

bookseller that provides services similar to a traditional bookseller…. Amazon's role as an

internet bookseller closely parallels that of a traditional bookseller.”); Curran v. Amazon.com,

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 18 of 33

Inc., 2008 U.S. Dist. LEXIS 12479, *27, 41-42 (S.D. W. Va. Feb. 19, 2008) (Amazon should be

treated as a “traditional book seller”).

B&N cannot escape the rule that “one who only delivers or transmits defamatory matter

published by a third person is subject to liability if, but only if, he knows or has reason to know

et
of its defamatory character.” RESTATEMENT (SECOND) OF TORTS § 581 (emphasis added). “It

would appear quite clearly that those who perform a secondary role in disseminating defamatory

.n
matter authored and published by others in the form of books, magazines, and the like -- as in the

case of libraries, news vendors, distributors, and carriers -- would not be subject to liability to

or
anyone in the absence of proof that they knew or had reason to know of the existence of

at
defamatory matter contained in matter published.” Dworkin v. Hustler Magazine, Inc., 611

F. Supp. 781, 786 (D. Wyo. 1985) (quoting PROSSER AND KEETON ON THE LAW OF TORTS § 113
ul
at 810 (5th ed. 1984)). See also Hartman v. Am. News Co., 171 F.2d 581 (7th Cir. 1948) (“the

applicable law clearly is that the distributor of an alleged libel is not liable if he can prove to the
eg

satisfaction of the jury that he did not know of the libel, and that he was not negligent in not

knowing.”); Lerman v. Chuckleberry Pub., Inc., 521 F. Supp. 228, 235 (S.D.N.Y. 1981)
eR

(“vendors and distributors of defamatory publications are not liable if they neither know nor have

reason to know of the defamation”, citing RESTATEMENT § 581); Lewis v. Time Inc., 83 F.R.D.

455, 464 (E.D. Cal. 1979) (plaintiff seeking to impose liability on a distributor for a libel which
Th

appeared in a magazine must prove that the distributor either knew of the libelous content of the

article or that facts were known which imposed a duty to investigate), aff’d, 710 F.2d 549 (9th

Cir. 1983); Osmond v. EWAP, Inc., 153 Cal. App. 3d 842, 854, 200 Cal. Rptr. 674 (1984) (“the

rule formulated in section 581 of the Restatement Second of Torts governs this action against

EWAP for libel. Accordingly, in order to find the malice or scienter necessary to hold EWAP

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 19 of 33

liable for disseminating the libelous material, a jury would be required to find that EWAP knew

or had reason to know of its defamatory character.”); Janklow v. Viking Press, 378 N.W.2d 875,

881 (S.D. 1985) (bookseller may be held liable for defamation as set forth in Restatement § 581);

Church of Scientology. v. Minnesota State Med. Ass’n, 264 N.W.2d 152, 156 (Minn. 1978)

et
(“Those who merely deliver or transmit defamatory material previously published by another

will be considered to have published the material only if they knew, or had reason to know, that

.n
that the material was false and defamatory”, citing RESTATEMENT § 581).

A. B&N Had Actual Knowledge Of Plaintiffs’ Claims But Continued To Sell

or
Sinclair’s Book.

Here, the undisputed facts establish that B&N has had actual knowledge of the
at
defamatory statements in the Sinclair book continued to promote, offer for sale, and sell it to the

public. B&N’s motion for summary judgment omits the undisputable fact that it continued to
ul
promote, offer for sale, and sell Sinclair’s book after its General Counsel received a draft of
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plaintiffs’ complaint and after the filed complaint was served. (Dkt. No. 61-1, Decl. ¶ 26).

Nothing in the CDA would operate to bar plaintiffs’ claims based on B&N’s conduct in

knowingly selling a defamatory book after it received such notice.

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If B&N believed that the CDA would protect it from liability to plaintiffs, it would have

had no reason to stop selling the book. Thus, B&N’s own conduct that followed after it received
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clear and express notice of the defamation means that the motion for summary judgment should

be denied.

B. Whether B&N Had Notice Of The Defamatory Nature Of Sinclair’s Book In

2009 And Yet Continued To Sell It Is A Question Of Fact.

As discussed above, a bookseller can be held liable for its own conduct after it had reason

to know that that the book it sold was false and defamatory. Whether B&N had constructive

notice and, if so, when is a question of fact that should not be decided without providing

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plaintiffs with an opportunity to obtain discovery from defendants B&N, Sinclair and SPI and

third-parties.

A bookseller’s knowledge can be shown by circumstantial evidence. Smith v. California,

361 U.S. 147, 154 (1959) (“Eyewitness testimony of a bookseller’s perusal of a book hardly need

et
be a necessary element in proving his awareness of its contents. The circumstances may warrant

the inference that he was aware of what a book contained, despite his denial.”). In Lerman, 521

.n
F.Supp. 228, the Court denied the defendant-distributors’ motion for summary judgment, finding

that there were factual issues as to the nature and extent of the distributors knowledge and role in

or
the distribution of a magazine claimed to be defamatory. “In addition, I find that questions of

at
fact clearly are presented with respect to whether special circumstances existed requiring PDC to

review the content of the issues of Adelina published after the May 1980 issue.” Id. at 237.
ul
Here, plaintiffs allege that prior to the filing of this action, B&N knew or had reason to

know of the defamatory statements at issue but continued to publish, offer for sale and/or sell
eg

Sinclair’s book. (Dkt. No. 1 ¶¶ 47, 49, 58, 67, 72). B&N did not provide evidentiary facts

disputing these allegations or that it lacked such knowledge. Without having had any discovery,
eR

plaintiffs have come forward with facts showing that there were such communications with

B&N. (See, e.g., Decl. Exs. I-N).

Further, customer reviews posted by B&N (some of which were removed) gave it notice
Th

that Sinclair’s book was defamatory. (See, e.g., Decl. Ex. A). As a rule, only B&N members can

write reviews. The reviews are screened by B&N for content, including for “[C]omments that

defame anyone.” (Decl. Ex. U). B&N, not the reviewer, posts the reviews. Additionally, a

person can “flag” specific reviews as inappropriate. (See, e.g., Decl. Ex. V). Thus, at this stage

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 21 of 33

of the litigation, it cannot claim that it lacked constructive notice of the defamatory statements

made in and about Sinclair’s book.

B&N’s summary judgment motion does not contain any evidence that would support its

not having constructive knowledge of the defamation. Plaintiffs have not yet obtained any

et
discovery from any party or non-party to this case. (Decl. ¶ 27). As such, the motion should be

denied or continued pending the receipt of such discovery. The Federal Rules provide that:

.n
If a party opposing the motion shows by affidavit that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may:

or
(1) deny the motion;

(2) order a continuance to enable affidavits to be obtained,

at
depositions to be taken, or other discovery to be undertaken; or

(3) issue any other just order.

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Fed. R. Civ. P. 56(f). “The District of Columbia Circuit has cautioned against granting summary

judgment before the plaintiff has been afforded the opportunity to take discovery.” Ware v.
eg

Nicklin Assocs., Inc., 580 F. Supp. 2d 158, 163 (D.D.C. 2008). B&N’s motion is based on broad

and conclusory generalities. Plaintiffs should have the opportunity to obtain discovery, including
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the deposition of Sinclair and B&N’s declarants. (Decl. ¶¶ 28-29).

Plaintiffs fully expect that discovery will support its allegations that B&N knew and had
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reason to know of the defamatory character of Sinclair’s book. Curran, 2008 U.S. Dist. LEXIS

12479, *42-43 (“Plaintiff is entitled to the opportunity to prove his allegations of a joint venture.

At this time, Amazon’s argument does not provide the court with a basis to dismiss it from the

litigation.”).

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In addition, if a particular author or publisher has published “notoriously sensational or

scandalous books,” a bookstore offering such literature for sale takes the risk of being held liable

for defamation:

Bookshops and circulating or lending libraries come within the

rule stated in this Section. The vendor or lender is not liable, if

et
there are no facts or circumstances known to him which would
suggest to him, as a reasonable man, that a particular book contains
matter which upon inspection, he would recognize as defamatory.

.n
Thus, when the books of a reputable author or the publications of a
reputable publishing house are offered for sale, rent or free
circulation, he is not required to examine them to discover whether
they contain anything of a defamatory character. If, however, a

or
particular author or a particular publisher has frequently published
notoriously sensational or scandalous books, a shop or library
that offers to the public such literature may take the risk of

RESTATEMENT (SECOND) OF
at
becoming liable to any one who may be defamed by them.

TORTS § 581 cmt. e (emphasis added). “In context, those words

ul
describe authors or publishers who notoriously use defamatory material in their publications.

Accordingly, the word ‘reputable’ in Comment (e) refers to the publisher’s reputation for truth
eg

and veracity.” Osmond, 153 Cal. App. 3d at 856; see also Church of Scientology, 264 N.W.2d at

156 (“The article’s original publisher was known to be reputable, therefore MSMA and its
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officers had no reason to believe that the article was false and defamatory.”).

Sinclair’s preposterous allegations regarding then-Senator Obama and Parisi were the

subject of wide public discussion both before and after B&N began selling the defamatory book.
Th

(See, e.g., Dkt. No. 43-1, Declaration Exs. 3-8, 17, 19, 21). B&N’s own counsel conceded that

“Sinclair’s allegations, and the interactions between Parisi, Whitehouse.com and Sinclair were

also widely-publicized[.]” (Decl. Ex. Q, May 26, 2010 letter at 2-3 & n.2). B&N certainly did

not offer for sale a book of a “reputable” author or publishing house. Sinclair’s book is the very

definition of “notoriously sensational or scandalous”, with his allegations gracing the cover of

multiple editions of the Globe tabloid. (Dkt. No. 43-1, Declaration Exs. 4-8). Sinclair has a

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 23 of 33

much publicized extensive criminal record, including for fraud. (Id. Ex. 1). He self published

the book through defendant SPI because no reputable publisher would do so. His initial “print

on demand” (POD) company refused to print the book because of is “nature.” (Id. Ex. 18). The

back cover of Sinclair’s book admits that Sinclair was “blackballed by every single book

et
publisher he contacted regarding the publication of his story.” (Dkt. No. 61, Decl. Ex. 1,

emphasis added). Discovery will confirm that Sinclair attempted to obtain a reputable publisher

.n
but was unable to do so.

Moreover, the author of the foreword to Sinclair’s book, defendant Rense, is no more

or
reputable. He is a right wing conspiracy theorist with a nationwide radio program that features

at
discussions of such things as UFOs, Holocaust denial, and anti-Semitism. (Dkt. No. 43 at 5 n.2

& Ex. 20). The Southern Poverty Law Center characterizes rense.com as a “hate site” and the
ul
Anti-Defamation League declared that the website promotes anti-Semitic views. (Dkt. No. 69

Exs. 3 p.2, 37). The fact that Rense was the author of the foreword to the book also should have
eg

raised a red flag with B&N.

This case is certainly on par with Brandewyne v. Author Solutions, Inc., Mem. Decision,
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Case No. 04-CV-4363 (18th Judicial Dist. Ct., Kansas Aug. 3, 2006) (Dkt. No. 61, Decl. Ex. 19).

There, Brock wrote a book about his ex-wife, Brandewyne, which alleged that Brandewyne was

a child abuser, drug abuser, plagiarizer and felon, who had adulterous affairs and hired a hit man
Th

to kill Brock. Brandewyne sued Brock and his self publishing company that printed the book,

AuthorHouse. A jury found Authorhouse liable and returned a verdict for $230,000. The

Kansas Court subsequently ruled that Authorhouse must pay $240,000 in punitive damages. The

Court found that AuthorHouse was responsible for the damages because the company knew that

Brock did not want to spend money on printing the book only to have it canceled because of its

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 24 of 33

content and concerns with libel issues, as other publishers had done. Mem. Decision at 4.

AuthorHouse argued it merely printed the book after Brock signed a contract taking full

responsibility for the contents. In addition, the company said, only three copies of the book were

sold. “While an online publisher cannot be expected to read every book from every customer,

et
given Brock’s description of his own book, a responsible publisher would make some effort to

screen the content of the book at issue in this case before accepting the book for publication.” Id.

.n
at 10.

Given the “notoriously sensational or scandalous” book authored by Sinclair, published

or
by SPI, and distributed by B&N, it assumed the risk of becoming liable to any one who may be

at
defamed by them, including the plaintiffs here, after having reason to know such information.

B&N’s motion should be denied.

ul
III. LIABILITY BASED ON B&N’S PRODUCT DESCRIPTION THAT IT USED TO
PROMOTE AND SELL SINCLAIR’S BOOK IS NOT BARRED BY THE
COMMUNICATIONS DECENCY ACT.
eg

A. There Is An Issue Of Material Fact As To Plaintiffs’ Allegation That B&N Is

Responsible For The Defamatory Product Description.

B&N argues that all claims pertaining to the “product description” used by B&N to
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market and promote Sinclair’s book are barred by the CDA. The complaint alleges that B&N’s

self-styled “Product Description” made false and defamatory statements regarding plaintiffs.
Th

(Dkt. No. 1 ¶¶ 35-36). They also allege that the “defamatory statements were made and

published by defendants with knowledge of their falsity or with reckless disregard for their

truth.” (Id. ¶ 58).

In Whitney Information Network, Inc. v. Xcentric Ventures, LLC, 2006 U.S. App. LEXIS

19518 (11th Cir. Aug. 1, 2006), the plaintiff alleged that the defendant rewrote parts of consumer

complaints submitted by third parties and made other defamatory statements that were posted on

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 25 of 33

its website. In moving to dismiss, the defendants relied on a declaration that they did not

“author[] the statements that are the subject of this lawsuit.” Id. at *7. The Court found that the

declaration was conclusory and thus insufficient to support a finding on a motion to dismiss that

CDA immunity applied. Id. at *14-15. Here, B&N’s declaration that it had absolutely no role in

et
the creation or development of the Product Description is conclusory. As discussed above, it had

communications with Sinclair or third-parties regarding the content of the book or its Product

.n
Descriptions. Plaintiffs have evidence that Sinclair had been in contact with B&N’s legal

department. According to a July 19, 2009 web posting by Sinclair:

or
This evening I received a pdf file from a website where the Obama
bloggers admit that they have been spamming Barnes & Noble
at
website with fake reviews and rating the book as low as possible to
try and prevent people from ordering the book.

In this same file these same Bloggers have admitted to trying to

ul
find “back door entry” into another individuals blog (which by the
way is also known as “hacking”) which has been sent to the owner
of that website.
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I have forwarded to the legal department at Barnes & Noble and

Amazon.com the pdf file as well. I welcome honest reviews based
on having actually read the Book. Sadly the Obama people do not
know what honest anything is, and the pdf file this evening
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demonstrates that in living color.

I am pleased that both Barnes & Noble and Amazon.com have the
Book, Barack Obama & Larry Sinclair: Cocaine, Sex, Lies &
Murder?
Th

Posted By Larry Sinclair at 9:12 PM 0 comments Links to this post

(Decl. Ex. N). Plaintiffs have not had any discovery from B&N or Sinclair regarding such

communications.4 Nor has there been any discovery as to the contact that third parties had with

4
Plaintiffs’ attempts to obtain discoverable information from defendants Sinclair and SPI
have been rebuffed. (See, e.g., Dkt. Nos. 45-47). Rense’s counsel has copies of electronic
documents from Sinclair pursuant to a joint defense agreement, but has not provided a copy to
plaintiffs. (Decl. Ex. S).

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 26 of 33

B&N regarding the book. Plaintiffs should be entitled to discovery related to the selection of the

book by the booksellers and the creation and development of the Product Description. See Fed.

R. Civ. P. 56(f); Doctor’s Assocs., 2007 U.S. Dist. LEXIS 28811, *6-7. Consequently, the Court

should deny B&N’s motion for summary judgment.

et
B&N’s argument also rests on an allegation in another case, Parisi, et al. v. Ingram

Content Group, Inc., et al., Civil Action No. 10-974-RJL. That complaint, which has not yet

.n
been served, alleges that Ingram and its affiliate Lightning Source Inc. “wrote, distributed and/or

published” promotional statements for Sinclair’s book. (Dkt. No. 34 Ex. A ¶ 35). The same

or
complaint also alleges that “Amazon makes false and defamatory statements” in its Product

at
Description. (Id. ¶ 29). The Ingram complaint does not allege that those defendants were solely

responsible for the Product Description. The allegation in paragraph 35 was clearly written in
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the disjunctive. See, e.g., Philips Electronics N. Am. Corp. v. Hope, 631 F. Supp. 2d 705, 724

n.7 (M.D.N.C. 2009) (“based on the use of the disjunctive ‘and/or’ in this provision, these
eg

activities appear to be distinctly separable”); United States v. Ramsey, 503 F. Supp. 2d 554, 560

(N.D.N.Y. 2007) (“and/or” is a disjunctive connective). The CDA defines an “information

eR

content provider” as “any person or entity that is responsible, in whole or in part, for the

creation or development of information provided through the Internet or any other interactive

computer service.” 47 U.S.C. § 230(f)(3) (emphasis added). Because the Ingram complaint does
Th

not allege that Ingram and Lightning were solely responsible for the Product Description, the

Court should not find that CDA immunity applies here.

B. B&N Adopted The Product Description As Its Own.

Assuming arguendo that a third party wrote the Product Description in whole or in part, it

is irrelevant because B&N adopted it as its own to advertise and promote the sale of Sinclair’s

book by B&N. The Product Description used by B&N does not suggest that it was authored by

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 27 of 33

Sinclair, SPI or anyone else. (Decl. Exs. 13-15, 17). Any reasonable person would read the

Product Description as being one created by or for B&N, or at the very least, one that B&N stood

behind. It used the positive comments to sell Sinclair’s book. See, e.g., Donato v. Moldow, 374

N.J. Super. 475, 490 (App. Div. 2005) (“[W]ith respect to any messages posted by Moldow,

et
using his own name or the appellation ‘Webmaster,’ he was a content provider.”). Content

providers are not immune under the CDA, which only immunizes “information provided by

.n
another content provider.” 47 U.S.C. § 230(c)(1) (emphasis added); Anthony v. Yahoo, Inc., 421

F. Supp. 2d 1257, 1263 (N.D. Cal. 2006). As such, B&N has adopted the description as its own

or
and can be held liable for its contents.

at
The defamatory Product Description is not a third party comment, but a description

affirmatively used by B&N to sell Sinclair’s book. Any reasonable person would conclude that
ul
the “Product Description” was B&N’s. B&N is trying to stretch the CDA to encompass its own

conduct and absolve itself of any liability. B&N’s conduct ratified the defamatory Product
eg

Description, which ratification can provide the basis for defamation liability. See, e.g.,

Pasqualini v. MortgageIT, Inc., 498 F. Supp. 2d 659, 670-71 (S.D.N.Y. 2007); Rice v. Rose &
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Atkinson, 176 F. Supp. 2d 585, 591 (S.D. W.Va. 2001); Note, An Interpretive Framework for

Narrower Immunity Under Section 230 of the Communications Decency Act, 33 Harv. J. of Law

& Pub. Policy 863, 879-82 (2010) (available at http://www.harvard-jlpp.com). “Similarly, a

Th

malicious provider who intentionally and unreasonably chooses not to remove material that can

easily be deleted, and that is known to be defamatory, should not be immune from civil liability

under section 230(c)(2)(A). The statute expressly provides that [n]othing in this section shall be

construed to prevent any State from enforcing any State law that is consistent with this section.

47 U.S.C.A. 230(e)(3) (West 2001). A Texas law non-publisher claim based on malicious

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 28 of 33

conduct therefore may be asserted consistently with section 230.” Milo v. Martin, 311 S.W.3d

210, 221 (Tex. Ct. App. 2009) (Gaultney, J., concurring op.).

In Hy Cite Corp. v. Badbusinessbureau.com, L.L.C., 418 F. Supp. 2d 1142 (D. Ariz.

2005), plaintiffs alleged that defendants “solicit individuals to submit reports with the promise

et
that individuals may ultimately be compensated for their reports.” Id. at 1149. According to the

Court, “[t]hese allegations arguably could support a finding that Defendants are

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‘responsible . . . for the creation or development of information’ provided by individuals

submitting Rip-off Reports in response to Defendants’ solicitation.” Id., citing 47 U.S.C.

or
§ 230(f)(3). Taking plaintiff’s allegations as true, the Hy Cite Corp. Court went on to find that

at
defendants were not entitled to immunity under the CDA and denied the motion to dismiss. Id.

In Accusearch, 2007 U.S. Dist. LEXIS 74905, the Court found that by affirmatively
ul
soliciting request for phone records and purchasing them for resale, the defendants participated

in the creation or development of the information, and thus did not qualify for § 230 immunity.
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Id. at *16.

Here, B&N solicited authors, including print on demand authors, to sell their books at
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B&N’s store. In response to that solicitation, authors provided information about the book.

B&N then used that information to publicize, promote and sell the book. B&N did not cite any

case holding that a bookseller could not defame or libel a person in a description of a book, e.g.,
Th

a catalog description. Here, B&N used materials to market and sell books for its own financial

gain. The CDA does not provide immunity to a retailer selling goods. In this situation, the CDA

does not provide B&N with immunity.

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IV. THE CDA DOES NOT BAR PARISI’S RIGHT OF PUBLICITY AND FALSE
LIGHT CLAIMS.

The CDA does not immunize an interactive service provider from a state law right of

publicity claim. Section 230(e), entitled “Effect on other laws,” provides, in relevant part, that:

No effect on intellectual property law. Nothing in this section shall

et
be construed to limit or expand any law pertaining to intellectual property.

State law. Nothing in this section shall be construed to prevent any

.n
State from enforcing any State law that is consistent with this section. No
cause of action may be brought and no liability may be imposed under any
State or local law that is inconsistent with this section.

or
47 U.S.C. § 230(e)(2), (3). Under this plain language, the CDA does not bar any claim pertaining

to intellectual property. See, e.g., Universal Comm’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 422-
at
23 (1st Cir. 2007) (claims based on intellectual property laws are not subject to § 230 immunity);

Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 704 (S.D.N.Y. 2009) (“I
ul
conclude, as a matter of law, that Section 230(c)(1) does not provide immunity for either federal
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or state intellectual property claims.”); Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288,

299 (D.N.H. 2008) (Ҥ 230(e)(2) excepts state as well as federal intellectual property laws from

the scope of the Act’s immunity provision.”); Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d
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409, 415 (S.D.N.Y. 2001) (accord).5

5
One court has ruled that the term “intellectual property” in the CDA is limited to “federal
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intellectual property. Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007). The
Atlantic Recording decision, however, explained why the 2007 decision was erroneous: “In four
different points in Section 230(e), Congress specified whether it intended a subsection to apply
to local, state, or federal law. See 47 U.S.C. §§ 230(e)(1) (‘any other Federal criminal statute’),
(3) (‘any State law’ and ‘any State or local law’), (4) (‘any similar State law’) (emphasis added
in all). It is therefore clear from the statute that if Congress wanted the phrase ‘any law
pertaining to intellectual property’ to actually mean ‘any federal law pertaining to intellectual
property,’ it knew how to make that clear, but chose not to.” 603 F. Supp. 2d at 703. See also
Doe, 540 F. Supp. 2d at 299-300 (“The Ninth Circuit made no attempt to reckon with the
presence of the term ‘any’ -- or for that matter, the absence of term ‘federal’ -- in § 230(e)(2)
when limiting it to federal intellectual property laws. Nor did the Ninth Circuit make any effort
to reconcile its reading of § 230(e)(2) with other limiting provisions of § 230 which specifically

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The right of publicity is a widely recognized intellectual property right. See, e.g.,

Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 573 (1977) (state’s interest in providing

a right of publicity is “closely analogous to the goals of patent and copyright law”); ETW Corp.

v. Jireh Publ’g, Inc., 332 F.3d 915, 928 (6th Cir. 2003) (“The right of publicity is an intellectual

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property right of recent origin which has been defined as the inherent right of every human being

to control the commercial use of his or identity”); Allison v. Vintage Sports Plaques, 136 F.3d

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1443, 1448 (11th Cir. 1998) (the common law right of publicity is an intellectual property right

for purposes of the first-sale doctrine); Doe, 540 F. Supp. 2d at 302 (the right of publicity is a

or
widely recognized intellectual property right and § 230 immunity does not apply to claim for

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infringement of right to publicity); Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th

387, 399, 106 Cal. Rptr. 2d 126, 135 (2001) (“The right of publicity, like copyright, protects a
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form of intellectual property that society deems to have some social utility.”); 4 J. McCarthy,

MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 28.1 (4th ed. 2003) (“The right of
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publicity is property, and is properly categorized as a form of intellectual property.”); BLACK’S

LAW DICTIONARY 813 (7th ed. 1999) (defining intellectual property as “A category of intangible
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rights protecting commercially valuable products of the human intellect. The category comprises

primarily trademark, copyright, and patent rights, but also includes trade-secret rights, publicity

rights, moral rights, and rights against unfair competition.”); cf. Almeida, 456 F.3d at 1322-24
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(discussing, without deciding, whether the right of publicity should be considered “intellectual

property” under the CDA).

There can be no dispute that “[o]ne who appropriates to his own use or benefit the name

or likeness of another is subject to liability to the other for invasion of his privacy.”

identify federal or state law as such. . . . The content of these provisions indicates that, where
Congress wished to distinguish between state and federal law in § 230, it knew how to do so.”).

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RESTATEMENT (SECOND) OF TORTS § 652C. “The interest protected by the rule ... is the interest

of the individual in the exclusive use of his own identity, in so far as it is represented by his

name or likeness, and in so far as the use may be of benefit to him or to others.” Id. § 652C, cmt.

a.

et
In Villalovos v. Sundance Assocs., Inc., 2003 U.S. Dist. LEXIS 387 (N.D. Ill. Jan. 13,

2003), the Court denied a motion to dismiss a right of publicity claim arising out of the

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unauthorized use of a non-celebrity plaintiff’s first name and address in a personal advertisement

seeking sexual partners, despite defendant’s argument that use did not injure value of plaintiff’s

or
identity. See also Doe, 540 F. Supp. 2d at 304; M. Minora, Comment: Rumor has it that Non-

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Celebrity Gossip Web Site Operators are Overestimating their Immunity Under the

Communications Decency Act, 17 CommLaw Conspectus 821, 868 (2009) (“CDA does not
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shield service providers from claims based on intellectual property violations, including the right

of publicity. Thus, when the published third party gossip identifies the subject of the gossip –
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either by name, photograph, other biographical information, or some combination thereof – and

the gossip Web site generates revenue through advertising, this commercial use violates the
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individual's right of publicity, and CDA immunity does not apply.”) (footnote omitted)).

Here, Parisi alleges that the defendants, including B&N, have misappropriated right to

publicity by using his name and alleged description to promote and sell Sinclair’s book. (Dkt.
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No. 1 ¶¶ 35-36, 41, 66-69). B&N’s summary judgment motion is based solely on the CDA. It

did not file a motion to dismiss Parisi’s publicity claim for failure to state a claim under Fed. R.

Civ. P. 12(b)(6); it answered the complaint.6 Thus, B&N’s motion for summary judgment on

Count II of the complaint should be denied.

6
Any pleading deficiencies could, of course, be remedied by an amended complaint.

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 32 of 33

Further, granting summary judgment in favor of B&N on Parisi’s false light claim would

be error. B&N misrepresented his “character, activities or beliefs[.]” Vassiliades v. Garfinckel's,

492 A.2d 580, 592 (D.C. 1985). The complaint alleges that “the published false defamatory

statements concerning Parisi place him in a false light which would be highly offensive to a

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reasonable person.” (Dkt. No. 1 ¶ 66). It goes on to allege that the defendants, including B&N,

had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the

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false light in which Parisi would be placed, causing damages to Parisi. (Id. ¶¶ 67, 69).

CONCLUSION

or
For the foregoing reasons, plaintiffs respectfully request that B&N’s motion for summary

judgment be denied. at
Dated: November 8, 2010 Respectfully submitted,
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/s/ Richard J. Oparil
Richard J. Oparil (D.C. Bar No. 409723)
PATTON BOGGS LLP
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2550 M Street, NW
Washington, DC 20037
(202) 457-6000
(202) 457-6315 (fax)
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Kevin M. Bell
PATTON BOGGS LLP
8484 Westpark Drive
McLean, VA 22102
(703) 744-8000
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(703) 744-8001 (fax)

Attorneys for Plaintiffs

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 Case 1:10-cv-00897-RJL Document 77 Filed 11/08/10 Page 33 of 33

CERTIFICATE OF SERVICE

I hereby certify that on November 8, 2010, a copy of the foregoing was served on counsel

for the parties that have appeared in the case by the Court’s ECF system and on the following by

email:

et
Lawrence W. Sinclair
Sinclair Publishing, Inc.
P.O. Box 1963

.n
Washington, DC 20013
lsinclair@sinclairpublishingllc.com

or
s/ Richard J. Oparil
Richard J. Oparil (DC Bar No. 409723)

at
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