Goddard v. Google, Inc.

• Decision Date: 30 July 2009
• Docket Number: No. C 08-2738 JF (PVT).,C 08-2738 JF (PVT).
• Citation: 640 F.Supp.2d 1193
• Parties: Jenna GODDARD, individually and on behalf of all others similarly situated, Plaintiff, v. GOOGLE, INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — Northern District of California

640 F.Supp.2d 1193

Jenna GODDARD, individually and on behalf of all others similarly situated, Plaintiff, v. GOOGLE, INC., a Delaware corporation, Defendant.

No. C 08-2738 JF (PVT).

United States District Court, N.D. California, San Jose Division.

July 30, 2009.

Alan Himmelfarb, Kamberedelson, LLC, Vernon, CA, Michael James McMorrow,

Kamberedelson, LLC, Chicago, IL, for Plaintiff.

Karen Johnson-McKewan, Kikka N. Rapkin, Nancy E. Harris, Nikka Noel Rapkin, Orrick Herrington & Sutcliffe LLP, San Francisco, CA, for Defendant.

ORDER GRANTING MOTION TO DISMISS

JEREMY FOGEL, District Judge.

I. BACKGROUND

Plaintiff Jenna Goddard ("Plaintiff") alleges that she and a class of similarly situated individuals were harmed as a result of clicking on allegedly fraudulent web-based advertisements for mobile subscription services. She alleges that Defendant Google, Inc. ("Google") illegally furthered this scheme. The facts are set forth more fully in this Court's previous order granting Google's motion to dismiss. See Goddard v. Google, No. C 08-2738 JF (PVT), 2008 WL 5245490 (N.D.Cal. Dec. 17, 2008). In support of its prior motion to dismiss, Google asserted that each of Plaintiff's claims was barred by § 230(c)(1) of the Communications Decency Act ("CDA"), which prevents a website from being treated as the "publisher or speaker" of third-party content, and thus typically immunizes website operators from liability arising from the transmission of such content.¹ As Google argued, claims that seek to impose liability on a website operator as the speaker or publisher of third-party content—or to impose liability that is "merely a rephrasing of" such speaker or publisher liability, Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1106 (9th Cir. 2009)—are barred by the CDA unless the website also is an "information content provider," meaning that it "is `responsible, in whole or in part, for the creation or development of' the offending content." Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC (Roommates), 521 F.3d 1157, 1162 (9th Cir.2008) (en banc) (quoting 47 U.S.C. § 230(f)(3)).

Faced with the implications of this clear analytic framework, which was articulated in the Ninth Circuit's 2008 en banc decision in Roommates, Plaintiff resorted to creative argument in an attempt to show that her claims did not seek to hold Google liable for the dissemination of online content at all. The Court rejected Plaintiff's artful pleading and dismissed the complaint. See Goddard, 2008 WL 5245490, at *4-7. Plaintiff was granted leave to amend, with express instructions that she attempt to "establish Google's involvement in `creating or developing' the AdWords, either `in whole or in part,'" so as to avoid CDA immunity. Id. at *7.

In her amended complaint, Plaintiff now alleges that "Google's involvement [in creating the allegedly fraudulent advertisements] was so pervasive that the company controlled much of the underlying commercial activity engaged in by the third-party advertisers." Amended Complaint ¶ 21. Plaintiff alleges that Google "not only encourages illegal conduct, [but] collaborates in the development of the illegal content and, effectively, requires its advertiser customers to engage in it." Id.² These allegations, if supported by other specific allegations of fact, clearly would remove Plaintiff's action from the scope of CDA immunity. The quoted allegations, however, are mere "labels and conclusions" amounting to a "formulaic recitation of the elements" of CDA developer liability, and as such, they "will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Rather, the Court must examine the pleading to determine whether Plaintiff alleges mechanisms that plausibly suggest the collaboration, control, or compulsion that she ascribes to Google's role in the creation of the offending AdWords. Having undertaken such an examination, the Court concludes that Plaintiff has not come close to substantiating the "labels and conclusions" by which she attempts to evade the reach of the CDA. Accordingly, her complaint once again must be dismissed.

II. LEGAL STANDARD FOR DISMISSAL PURSUANT TO RULE 12(b)(6)

A complaint may be dismissed for failure to state a claim upon which relief may be granted for one of two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). For purposes of a motion to dismiss, all allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir.1994). A complaint should not be dismissed "unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Clegg, 18 F.3d at 754. However, a plaintiff is required to provide "more than labels and conclusions," and the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

III. DISCUSSION

As explained at length in this Court's earlier order, the CDA has been interpreted to provide a "robust" immunity for internet service providers and websites, with courts "adopting a relatively expansive definition of `interactive computer service' and a relatively restrictive definition of `information content provider.'" Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir.2003). Thus, a website operator does not become liable as an "information content provider" merely by "augmenting the content [of online material] generally." Roommates, 521 F.3d at 1167-68. Rather, the website must contribute "materially . . . to its alleged unlawfulness." Id. at 1167-68. A website does not so "contribute" when it merely provides third parties with neutral tools to create web content, even if the website knows that the third parties are using such tools to create illegal content. See, e.g., id. at 1169 & n. 24 (noting that where a plaintiff brings a claim "based on a website operator's passive acquiescence in the misconduct of its users," the website operator generally will be immune "even if the users committed their misconduct using tools of general availability provided by the website operator"); see also Zeran v. Am. Online, Inc., 129 F.3d 327, 333 (4th Cir.1997) (holding that provider is shielded from liability despite receiving notification of objectionable content on its website and failing to remove it).

A. Developer liability

Plaintiff identifies several mechanisms by which Google allegedly contributes to the illegality of the offending advertisements, or even "requires" the inclusion of illegal content in such advertisements. Each of these mechanisms involves Google's "Keyword Tool," which Plaintiff describes as a "suggestion tool" employing an algorithm to suggest specific keywords to advertisers. Amended Complaint ¶ 22.³ To demonstrate that the Keyword Tool is not a "neutral tool" of the kind uniformly permitted within the scope of CDA immunity, Plaintiff alleges that when a potential advertiser enters the word "ringtone" into Google's Keyword Tool, the tool suggests the phrase "free ringtone," and that this suggestion is more prevalent than others that may appear. Amended Complaint ¶ 22. Plaintiff contends that the suggestion of the word "free," when combined with Google's knowledge "of the mobile content industry's unauthorized charge problems," makes the Keyword Tool "neither innocuous nor neutral." Pl.'s Opp. at 7. Plaintiff also alleges that Google disproportionately suggests the use of the term "free ringtone" to ordinary users of Google's web search function, causing them to view the allegedly fraudulent MSSPs' AdWords with greater frequency.

Even assuming that Google is aware of fraud in the mobile subscription service industry and yet disproportionately suggests the term "free ringtone" in response to an advertiser's entry of the term "ringtone," Plaintiff's argument that the Keyword Tool "materially contributes" to the alleged illegality does not establish developer liability. The argument is nearly identical to that rejected by the Ninth Circuit in Carafano v. Metrosplash, 339 F.3d 1119 (9th Cir.2003). There, the defendant website provided its users with a "detailed questionnaire" that included multiple-choice questions wherein "members select[ed] answers . . . from menus providing between four and nineteen options." Id. at 1121. Although they included sexually suggestive phrases that might facilitate the development of libelous profiles, the menus of pre-prepared responses were considered neutral tools because "the selection of the content was left exclusively to the user." Id. at 1124-25 (rejecting argument that website's sixty-two questions and menu of "pre-prepared responses" was so extensive as to render it an information content provider, since quantitative scope of contribution was "a distinction of degree rather than of kind").

Under Carafano, even if a particular tool "facilitate[s] the expression of information," id. at 1124, it generally will be considered "neutral" so long as users ultimately determine what content to post, such that the tool merely provides "a framework that could be utilized for proper or improper purposes," Roommates, 521 F.3d at 1172 (interpreting Carafano). Indeed, as already noted, the provision of neutral tools generally will not affect the availability of CDA immunity "even if a service provider knows that third parties are using such tools to create illegal content." Goddard, 2008 WL 5245490, at *3 (emphasis added). As a result, a plaintiff may not establish developer liability merely by alleging that the operator of a website should have known that the availability of certain tools might facilitate the posting of improper content. Substantially greater involvement is...