In Doe v. MySpace Incorporated the Court of Appeal holds that the Communications Decency Act immunizes MySpace and similar web sites

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When you see that "Doe" in the case name, you already know that an opinion is likely to tread where you'd rather it didn't.  In Doe v. MySpace Incorporated (June 30, 2009), the Court of Appeal (Second Appellate District, Division Eight) has the thankless task of deciding whether Myspace Incorporated is liable for sexual assaults by men that the minors met through MySpace.com.  The Court framed the issue in simple terms: "Can an internet Web server such as MySpace Incorporated, be held liable when a minor is sexually assaulted by an adult she met on its Web site?"  Slip op., at 2.  The Court determined that the answer hinged upon application of section 230 of the Communications Decency Act, which provides limited immunity for certain content publishers.

The Court described the test for immunity under section 230:

Immunity under section 230 requires proof of three elements: (1) MySpace is an interactive computer services provider, (2) MySpace is not an information content provider with respect to the disputed activity, and (3) appellants seek to hold MySpace liable for information originating with a third party user of its service. (Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330 (Zeran); Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 804-805.)

Slip op., at 7.  After examing federal authority that consistently found immunity existed in similar circumstances, the Court nevertheless discharged its obligation to examine the issue under California law:

While the Fifth Circuit‟s holding in Doe v. Myspace, Inc. is certainly persuasive, especially as it relates to an interpretation of a federal statute, its holding is not binding upon this court. Neither are the other federal precedents cited above. (Southern Cal. Ch. of Associated Builders etc. Com. v. California Apprenticeship Council (1992) 4 Cal.4th 422, 437; Wagner v. Apex Marine Ship Management Corp. (2000) 83 Cal.App.4th 1444, 1451.) However, where the decisions of the federal courts on a federal question are " ' "both numerous and consistent," we should hesitate to reject their authority [citation].' " (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58 (Barrett).) Nevertheless, we must look to our own state‟s treatment of section 230 immunity to confirm the above analysis.

Slip op., at 10-11.  The Court's survey of California decisions didn't reveal any basis for departing from the federal cases construing section 230, and the Court concluded that MySpace was immunized by section 230.  Go hug your child.  Teach them what not to do online, even if you don't understand it all that well.  And pay attention to what they are doing on the internet anyhow. 

Los Angeles County Bar Association Solo & Small Firm Conference

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I am speaking at the Los Angles County Bar Association Solo & Small Firm Conference. Specifically, I am talking about social media as a marketing tool for attorneys. Go figure. Below is a fascinating widget that displays twitter tweets with the hashtag #solo09:

"3 Geeks and a Law Blog" (aka geeklawblog.com) collects some must read blog posts of 2009

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Visit 3 Geeks and a Law Blog for a diverse list of "must read" posts of 2009 (so far, including a few of 2008's greatest hits).  The Complex Litigator is thankful for the inclusion on that list.  Most importantly, though, is the diversity of topics included on the list.  If you haven't visited 3 Geeks and a Law Blog yet, it's worth you time to visit a site self-described as: "A law blog addressing the foci of 3 intrepid law geeks, specializing in their respective fields of knowledge management, internet marketing and library sciences, melding together to form the Dynamic Trio."

You can follow the authors Lisa Salazar, Greg Lambert, and Toby Brown on Twitter:

@glambert
@lihsa
@gnawledge

COMPLEX TECH: Install Windows 7 RC1 on a netbook

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Considering the price of a netbook ($300 - $450), the price of Windows 7 RC1 (free to download and try until June), and how easy it is to put Windows 7 RC1 on a netbook, there is no reason not to try out this new operating system on a secondary system.  I put Windows 7 RC1 on an Acer netbook over the weekend, and the process was amazingly smooth.  You will need an external DVD burner to make this really easy to do (around $100), since netbooks don't come with optical drives.  Also, it will be easier to do this with a netbook that includes a hard drive, rather than a solid state drive.  The solid state drives in many netbooks are just too small.  Finally, follow these instructions on ZDNet.

The operating system looks beautiful and seems to be faster than XP was on that same netbook.  The screen looks better under Windows 7 than it did on XP.  IE 8 seems to open and load faster.  It handles wireless settings much better than XP.  Pending further study, I will buy a copy of the OS for that netbook when it comes out later this year.

Time to eat some crow and serve some compliments about the iPhone 3G

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Last November I dished out a heaping spoonful of grief, aimed at some class action lawsuits alleging problems with cracks appearing in iPhone 3G casings.  Smugly I said:

“My iPhone 3G is still looking sharp, but I don't (1) drop it, (2) drop it, (3) drop it, (4) put it in my pocket and sit on it, (5) drop it, (6) put it in my backpack and crush it with books, (7) drop it, or (8) catch it with my foot when I drop it and try to keep it from hitting the ground, resulting in it flying through the air and slamming into a brick wall and then falling to the ground.  But that's just how I am with gadgets - overly cautious.

(November 14, 2008 Post.)  Unfortunately, a few days ago, while admiring my pristine iPhone 3G (that lives in a holster at all times, that has a screen protector, and that has never been dropped), I noticed a hairline crack spreading out from the volume mute switch.  I went by an Apple store to discuss this issue.  Much to their credit, after inspecting my phone, the employee acknowledged (1) that there was a known problem with cracking in white iPhone 3G's and (2) that I had maintained my phone in exceptionally good condition, so they knew it wasn't cracking from abuse.  The employee also said that my phone was the first black iPhone 3G that they had seen with the same sort of hairline cracks as the white iPhones.  All of this pleasant service was obtained without any "I'm a class action lawyer/blogger" unpleasantness.  I just showed them the phone, they inspected it, and set up an appointment for a warranty exchange tomorrow (after I backup my phone data tonight).  So, if Apple is honoring the warranty for any non-abuse cracking, what's left to recover in the class actions about this issue?

Now let's just hope that the cracking issue in casing materials is resolved when the third generation iPhone is released this summer (allegedly), since I will likely need to have one of those (uncomfortably referring to it as "my precious").

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OFF TOPIC: California's Budget Fiasco

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I haven't used this blog as a general political soapbox, but sometimes things go too far.  California citizens recalled Gray Davis shortly after he announced that the state budget shortfall was likely to exceed $35 billion, on a budget of about $100 billion.  Think about that for a minute.  "Oops, we overspent by a third!"

Now, with a budget that has exploded to around $140 billion, I'm hearing that I may face higher sales taxes, higher gas taxes, and higher income taxes because we are still $40 billion in the red.  Wait, weren't we $40 billion in the red in 2003, when we did the unprecedented and recalled a governor?

The only adjectives that come to mind for the leadership of this state (and are fit to print in a family publication) are "criminal," "pathetic," "inexcusable."  Leaders lead.  Under that standard, Sacramento hasn't had leadership for a long time.  Thank you for driving my child's future in this beautiful state off a cliff in your exuberant desire to shovel money you don't have and don't own into the hands of your various pet projects and respective backers.  This defines ultra vires activity.  It should be criminal, and every legislator that voted for any of these budgets should be personally liable for the shortfall.  How could you let this happen?  How could we let this happen?  I guess apathy gets what it deserves, which is nothing.

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Sanai v. Saltz: a tale of woe and courage (on the part of the Court of Appeal)

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This is post is much less about complex litigation than it is about my respect for Division Seven of the Second District Court of Appeal and the great job done by Professor Shaun Martin at his blog, California Appellate Report.  I can't do justice to the story any better than Professor Martin does, so read about Sanai v. Saltz at California Appellate Report and have some courage that we still have judges that do what the law requires, even when it probably hurts.

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ABA Journal wants feedback from lawyers about job market and economy

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The ABA Journal is surveying lawyers about the job market and the current state of the economy.  Your participation will help improve the quality of information reflected in surey results, which will be published in the January ABA Journal.

Visit the survey here:  ABA Journal survey. (NOTE: survey conducted through www.surveymonkey.com)

For my part, I'm always curious to learn more about the state of the job market, especially when it appears to be tightening, so I consider this to be a valuable endeavor by the ABA Journal.  It never hurts to know your options.  In fact, given some of the major firm failures, it's short-sighted not to carefully consider every legitimate option that comes your way.

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CAOC Board of Governors

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I am pleased to announce that I will be a member of the Board of Governors of Consumer Attorneys of California ("CAOC") for 2009.  I am looking forward to the opportunity to meet and work with attorneys from across California.  CAOC provides a mechanism for aggregating the collective voices of plaintiffs and their counsel.  That aggregation provides an opportunity to be heard by the the public and its elected representatives in a way that would be all but impossible otherwise.

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