SMALL JUSTICE LLC; RICHARD A. GOREN; CHRISTIAN DUPONT, d/b/a Arabianights-Boston, Massachusetts Plaintiffs, Appellants,
XCENTRIC VENTURES LLC, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]
Richard A. Goren, with whom Law Office of Richard Goren was
on brief, for appellants.
G. Booth and Maria Crimi Speth, with whom Booth Sweet LLP and
Jaburg & Wilk, P.C. were on brief, for appellee.
Alan Levy, Public Citizen Litigation Group, Christopher
Bavitz, Berkman Center for Internet and Society, Mitch
Stoltz, Kit Walsh, Corynne McSherry, on brief for amici
curiae Public Citizen, Inc. and Electronic Frontier
Torruella, Kayatta, and Barron, Circuit Judges.
BARRON, Circuit Judge.
consolidated appeals concern a lawsuit that involves a number
of claims arising under, respectively, federal copyright law,
state tort law, and Massachusetts's catch-all consumer
protection statute, Mass. Gen. Laws ch. 93A ("chapter
93A"). The defendant in the suit is Xcentric Ventures,
LLC ("Xcentric"), which operates a website, the
RipoffReport.com ("Ripoff Report"). The named
plaintiffs are Richard Goren ("Goren"), a
Massachusetts attorney; Small Justice LLC ("Small
Justice"), a corporate entity that Goren created; and
Christian DuPont ("DuPont"). The
plaintiffs' claims all pertain to a dispute arising from
two reports that DuPont authored and then posted on the
Ripoff Report and that are highly critical of Goren, who had
provided legal representation to a plaintiff in an unrelated
matter in which DuPont was the defendant.
first of these appeals, we affirm the District Court's
decision to dismiss the plaintiffs' claims under
Massachusetts law for libel and intentional interference with
prospective contractual relations, and to bar portions of the
plaintiffs' multi-faceted chapter 93A claim from going
forward. We also affirm the District Court's decision to
grant summary judgment to Xcentric as to the remaining
claims. In the second appeal, we affirm the District
Court's decision to award attorney's fees and costs
the meandering path of this case, the facts that give rise to
these consolidated appeals are not contested. We thus begin
by laying out the facts found by the District Court in its
rulings on Xcentric's motion to dismiss and on
Xcentric's motion for summary judgment. We then briefly
recount the facts relevant to our resolution of the second
appeal, which concerns the District Court's award of
attorney's fees to Xcentric.
operates a website called the Ripoff Report. The
website's purpose is to permit consumers "to post
free complaints, called 'reports, ' about companies
and individuals whom [sic] they feel have wronged them in
some manner." The website works as follows for one who
wishes to post a report on it.
submitting a report to be posted on the website, the would-be
poster must click through a series of screens. Those screens
ask the user to describe and to categorize the nature of the
complaint that the user wishes to post as a report.
a user attempting to post a report encounters a final screen
that is captioned, "Submit your Report." Below that
caption is a text box. That text box is separately captioned,
"Terms and Conditions, " and contains a vertical
scroll bar on the right side. Without employing the vertical
scroll bar, a user who encounters this screen can see the
very beginning --but only the very beginning -- of what is a
longer list of terms and conditions.
the "Terms and Conditions" -- which, according to
the District Court, is "not visible unless a user
employs the scroll bar" -- provides: "[b]y posting
information or content to any public area of [the Ripoff
Report], you automatically grant, and you represent and
warrant that you have the right to grant, to Xcentric an
irrevocable, perpetual, fully-paid, worldwide exclusive
license to use, copy, perform, display and distribute such
information and content . . . ." As the District Court
noted, in order to post a report, a user is not required to
click on a box indicating that the user has read and agreed
to the text set forth in the text box captioned, "Terms
the text box captioned "Terms and Conditions, "
there is additional text that appears without any caption
above it. As is relevant here, at the time in question, that
By posting this report/rebuttal, I attest this report is
valid. I am giving Rip-off Report irrevocable rights to post
it on the website. I acknowledge that once I post my report,
it will not be removed, even at my request. Of course, I can
always update my report to reflect new developments by
clicking on UPDATE.
to this text is a check box. The parties agree that, to
submit a report to be posted on the website, a user of the
Ripoff Report must click on this check box. The user must
then click on the "continue" button at the bottom
of the same screen.
years ago, Goren was the subject of two negative reports that
had been posted on the Ripoff Report. The person who posted
the two reports, DuPont, had been the defendant in a lawsuit
in which Goren was representing a party suing DuPont. In the
two postings, DuPont leveled a number of criticisms regarding
Goren's character and conduct.
response, Goren filed suit in Massachusetts state court,
under Massachusetts state law, for libel and intentional
interference with prospective contractual relations. Goren
sought both money damages and injunctive relief in the form
of an order "enjoining [DuPont] from continuing to
publish" the reports that DuPont had posted.
did not defend the lawsuit, and Goren, after first
voluntarily dismissing those counts of the state court
complaint that sought money damages, successfully obtained a
default judgment. The state court granted Goren certain
equitable relief in connection with that default judgment.
Specifically, the state court enjoined DuPont from
"continuing to publish or republish" the two
reports that DuPont had posted. The state court also
transferred to Goren "all rights in and to ownership of
the copyright" for each of the two reports that DuPont
had posted. Finally, the state court appointed Goren as
DuPont's attorney-in-fact in order to "execute and
deliver a conveyance, transfer, and assignment of all rights
in and to ownership" of DuPont's copyright in each
posting to Goren. Thereafter, Goren assigned to himself the
copyright in the reports that DuPont had posted, which Goren
then assigned to Small Justice.
plaintiffs next proceeded to file this lawsuit in federal
court in Massachusetts against Xcentric, the owner of the
Ripoff Report. As amended, the plaintiffs' complaint
claimed, with respect to copyright law, a right to a
declaration of Small Justice's ownership of the copyright
to the two reports that DuPont had posted, and copyright
infringement. The amended complaint also made claims under
Massachusetts state law for libel, intentional interference
with prospective contractual relations, and violations of
amended complaint sought both damages and equitable relief.
With respect to equitable relief, the amended complaint
sought a declaratory judgment regarding Small Justice's
ownership of the copyright to each of the postings at issue.
The amended complaint also sought preliminary and permanent
injunctions that would bar Xcentric from "continuing to
publish, and/or from republishing all or any part" of
the two reports about Goren that DuPont had posted on the
Ripoff Report, and that would order Xcentric "to take
all steps necessary or appropriate to cause Google, Yahoo and
Bing to delete all cached copies of or links to" the two
moved to dismiss the amended complaint in its entirety. The
District Court partially granted that motion. Specifically,
the District Court held that the Communications Decency Act
("CDA"), 47 U.S.C. § 230, immunized Xcentric
from liability for the plaintiffs' Massachusetts law tort
claims, for libel and intentional interference with
prospective contractual relations, as well as from certain
theories of liability set forth in the plaintiffs'
chapter 93A claim.
230 of the CDA provides in part: "No provider or user of
an interactive computer service shall be treated as the
publisher or speaker of any information provided by
another information content provider." 47 U.S.C.
§ 230(c)(1) (emphasis added). Section 230 defines an
"interactive computer service" ("ICS") as
"any information service, system, or access software
provider that provides or enables computer access by multiple
users to a computer server." Id. §
230(f)(2). Subsection 230(f)(3) then defines an
"information content provider" ("ICP") 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
argued in its motion to dismiss that it was entitled to
immunity under the CDA as an ICS. Xcentric contended that the
claims at issue -- all of which were related to the Ripoff
Report continuing to display DuPont's postings -- treated
Xcentric as a "publisher or speaker of . . . information
provided by another information content provider, "
see id. § 230(c)(1), namely, DuPont.
responding to Xcentric's motion, the plaintiffs did not
dispute that Xcentric was an ICS. The plaintiffs argued
instead that Xcentric was also the ICP with respect to
DuPont's postings by virtue of Xcentric having held
itself out as a copyright holder of DuPont's postings and
having "direct[ed]" internet search engines to
display copies of those postings. Thus, the plaintiffs
contended, Xcentric could not assert the immunity conferred
by the CDA as to the claims at issue, because Xcentric, as an
ICS, was not being treated by those claims as the publisher
of information provided by another ICP. Rather, the
plaintiffs argued, Xcentric was being treated, at most, as
the publisher of information content for which Xcentric
itself was the ICP.
addressing these arguments, the District Court explained
that, under our decision in Universal Commc'n Sys.,
Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007),
in order for Xcentric "[t]o avail itself of [the]
immunity" set forth in § 230(c)(1), "(1)
Xcentric must be a provider or user of an [ICS]; (2) the
Plaintiffs' claim is based on information provided by
another [ICP]; and (3) the claim would treat Xcentric as the
publisher or speaker of that information." The District
Court then ruled that Xcentric had made the requisite showing
to trigger CDA immunity as to each of the plaintiffs'
claims that Xcentric's motion to dismiss targeted, save
for the plaintiffs' chapter 93A claim. The District Court
ruled that, due to CDA immunity, the chapter 93A claim could
go forward on only one of the three grounds for finding
liability that the District Court determined that the
plaintiffs had identified in that count of their amended
finding CDA immunity, the District Court explained that
Xcentric was not properly considered to be an ICP with
respect to DuPont's postings because Xcentric did not
"specifically encourage the development of the
offensive content" at issue. The District Court
concluded that the mere acquisition of copyright to content
created by another party -- or the holding of oneself out as
the copyright holder of such content -- does not suffice to
make an entity an ICP under § 230(f)(3). The District
Court similarly concluded that "instructing Google [and
other search engines] to use, or at least by not precluding
Google from using, its automated program to acquire cached
copies of the [postings] . . . does not rise to the level of
the 'creation or development of information' that
would render Xcentric an 'information content
provider' under the CDA."
the District Court's ruling on the motion to dismiss,
Xcentric filed a one-count breach-of-contract counterclaim
against DuPont. The case then proceeded to discovery on that
counterclaim and also on the plaintiffs' remaining
claims, which consisted of the two copyright-related claims
(for, respectively, a declaration of ...