I mentioned way back in January that Yahoo had filed a motion to dismiss the case against Holomaxx. Microsoft filed a motion to dismiss around that time, although I didn’t mention it here.
And, of course, Holomaxx filed a motion in opposition in both the Microsoft case and the Yahoo case. Nothing terribly interesting here, about what you’d expect to read.
On March 11 the judge ruled on both motions to dismiss and in both cases ruled that the case was dismissed. He did, however, give leave for the complaints to be amended in the future.
As I expected the Judge agreed that MSFT and Yahoo have protection under the CDA. First, the court made it clear that providers are allowed wide leeway in determining what is objectionable to their customers.
No court has articulated specific, objective criteria to be used in assessing whether a provider’s subjective determination of what is “objectionable” is protected by §230(c)(2). In e360 Insight, LLC v. Comcast Corp., 546 F.Supp.2d 605, 608 (N.D. Ill. 2008), the court concluded that virtually total deference to provider’s subjective determination is appropriate.
Then the court points out that to overcome the “good faith” provision of the CDA that Holomaxx must show how Microsoft is acting in bad faith. The court found no examples of that in Holomaxx’s pleadings. The court also determined that it was counter to the CDA for ISPs to explain exactly how to get around filters.
Holomaxx alleges no facts in support of its conclusory claim that Microsoft’s filtering program is faulty, nor does it identify an objective industry standard that Microsoft fails to meet. While it suggests that Microsoft is “[p]ossibly seeking to cut costs in its service to its free email service” and alleges based on information and belief that Microsoft profits from requiring senders to join “whitelists,” (Compl. ¶¶ 20-22), it offers no factual support for these allegations. Nor does Holomaxx cite any legal authority for its claim that Microsoft has a duty to discuss in detail its reasons for blocking Holomaxx’s communications or to provide a remedy for such blocking. Indeed, imposing such a duty would be inconsistent with the intent of Congress to “remove disincentives for the development and utilization of blocking and filtering technologies.” 47 U.S.C. § 230 (b)(4).
The court concludes:
The first element of Microsoft’s affirmative defense under the CDA is not in dispute. While it is conceivable that Holomaxx could raise an issue of fact as to the second and third elements, it must provide significantly greater factual detail in order to do so. Accordingly, Holomaxx’s third, fourth, fifth, and sixth claims predicated on Microsoft’s filtering and blocking activities will be dismissed, with leave to amend.
If you want to know what the judge said in the Yahoo ruling, just replace all above instances of Microsoft with Yahoo.
The above counts focused on the filtering claims (3, 4, 5 and 6). Claim 1 was that the ISPs were violating the Federal wiretapping law and Claim 2 was that they were violating the stored communications act. In regards to both those counts the court ruled that there was no evidence presented for them to make a decision either way.
One minor side note that I did find a bit interesting was both Yahoo and Microsoft mentioned their user agreements in their motions to dismiss. Holomaxx objected to this reference independent of their objection to the motion to dismiss. Their argument was that mentioning the user agreements (and even including documentation and affidavits) was inappropriate and shouldn’t be included in the case. The judge ruled in Holomaxx’s favor on this point.
There was one extra claim count in the Microsoft complaint “False Light”. I think this was a count really directed at Return Path (originally a co-defendant of Microsoft). The judge ruled there was no false light and that claim was dismissed without leave to amend.
So, there you go. The cases are dismissed. I don’t know if Holomaxx will take this dismissal and move on or if they’ll amend the complaint and try again. Given how fast they dropped Ironport/Cisco and Return Path from the case, it may be that they’ll gratefully take this dismissal and move on.
Full text of the Yahoo Ruling
Full text of the Microsoft ruling