I find this case so troubling since it’s factually very comparable to an alternative post Roommates. com case from an identical district ND Cal, Goddard v. Google, which in a thoughtful opinion cited Roommates. com in favor of the defense. Both this situation and the Goddard case concerned ads that offered some “bait” to buyers that caused responding consumers to be allegedly unwittingly enrolled in subscription services that had routine costs.
In the Goddard case, the bait was ringtones. In this case, the bait was “exclusive offers” for goods/services that, when got, would also give the customer some virtual forex for Zynga games. Applying Rommates. Com here, the Court cannot investigate at this juncture, in response to the pleadings, even if Zynga is entitled to immunity under the CDA. Rather, the FAC alleges facts, which, if proven, could support the end that Zynga is responsible, in whole or in part, for developing or coming up the extraordinary offers at issue. Fundamentally, Plaintiff alleges that the specific offers are alluring to users because they supply free virtual forex for use in Zynga games.
FAC ¶¶ 6, 8. In turn, Zynga is said to encourage acquisition of the digital currency by designing their games to become more interesting as users obtain more digital currency. Id. ¶¶ 3, 5. As noted by Plaintiff in her opposition, the lure of virtual currency is the main critical “content” in the extraordinary offer because, with out it, it is unlikely any user would ever participate in the offers.
Additionally, Plaintiff alleges that Zynga is accountable for the design, layout, and format of the unique offers, and the specific offers appear without delay within Zynga’s games. Id. ¶¶ 12, 13, 33, 36, 37. Moreover, Plaintiff has alleged Zynga’s “fabric contribution” to the alleged unlawful activity by saying that Zynga designed its games to deliberately create the demand for the digital currency offered in those games, and then used this demand to lure patrons into the allegedly fraudulent transactions. Id.
¶¶ 4 6, 8 9. From my perspective, the court does not carefully distinguish among an ad community’s economic attention which, it’s clear from the many apropos cases, is immaterial to the 47 USC 230 evaluation and an ad network’s considerable contribution to the offending content material. Even aiding create the ad copy isn’t enough of a contribution to trump 230; see, e. g. , Ramey v. Darkside Productions.
Of course it’s in Zynga’s financial attention to present buyers reasons to wish its virtual currency, and of course Zynga wants to provide buyers a number of ways to acquire that foreign money; that’s no various from the fact that it was in Google’s economic attention to get more advertisers and inspire them to spend additional cash on ads. In both cases, even though, the ad network couldn’t govern the allegedly fraudulent behavior of rogue advertisers. Accordingly, it’s improper under 230 to extend the ad network’s financial attention in ads to create liability for the advertiser’s rogue endeavor. I accept as true with that’s what the court did here. it is doubtful from Plaintiff’s allegations whether Adknowledge is an “interactive computer carrier issuer,” as that term is described by the CDA. It is also unclear no matter if Adknowledge falls under the “assistance content material provider” exception to CDA immunity.
Indeed, even if Adknowledge qualifies for immunity under the CDA is a fact based inquiry. As alleged, Adknowledge is described simply as an “aggregator” that solicits ads from third events and then facilitates transactions among those parties and Zynga. FAC ¶¶ 6 8. Given the limited nature of a Rule 12b6 problem, the Court cannot verify, at this stage, even if Adknowledge is entitled to CDA immunity. It would be improper to decide this issue on the pleadings and the restricted record supplied.
Adknowledge’s motion to brush aside according to CDA immunity is denied. The dialogue about Adknowledge is unsatisfying on a few other fronts. Is the court really going to say that Adknowledge isn’t a provider of interactive laptop amenities?Good luck discovering precedent to aid that end. More generally, one of the crucial key benefits of a 230 immunity is that it’s NOT a “fact based inquiry”; instead, it’s been used many times to evade discovery fishing expeditions. Perhaps structurally this court is waylaid by its flawed IMO belief that defendants have the load to prove 230 in place of plaintiffs having the burden to point out why 230 doesn’t apply.
The court’s placement of the weight on the defense is not remarkable, but it’s pretty rare.