Motion for Summary Judgement for Ripoff Report based on CDA 230

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					         Case 1:10-cv-00398-CAP Document 30-1                         Filed 08/17/10 Page 1 of 27




                        IN THE UNITED STATES DISTRICT COURT
                           NORTHERN DISTRICT OF GEORGIA
                                  ATLANTA DIVISION

HERMAN & RUSSO, P.C.;
MELISSA A. HERMAN;
DAVID A. RUSSO,
                                                                Case No: 10-CV-0398-CAP
         Plaintiffs,
         v.
XCENTRIC VENTURES, LLC, and
EDWARD MAGEDSON, and JOHN
OR JANE DOE,
         Defendants.

    DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR
             MOTION FOR SUMMARY JUDGMENT

         Pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1, Defendants Xcentric

Ventures, LLC and Ed Magedson (“Defendants”) move the court for an order

granting summary judgment as to all claims in this matter. This motion is based on

one basic point—in light of the undisputed material facts, Defendants are entitled

to judgment as a matter of law as to the issue of immunity pursuant to the

Communications Decency Act, 47 U.S.C. § 230(c)(1) (the “CDA”).

         I.        INTRODUCTION

         Since the CDA was enacted in 1996, every state and federal court that has

considered the merits of a claim against the Ripoff Report has—without

exception—agreed that Xcentric and Magedson are entitled to immunity under the

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CDA for statements posted by third party users. See, e.g., GW Equity, LLC v.

Xcentric Ventures, LLC, 2009 WL 62173 (N.D.Tex. 2009) (holding Xcentric and

Magedson entitled to immunity under the CDA); Intellect Art Multimedia, Inc. v.

Milewski, 2009 WL 2915273 (N.Y.Sup. 2009) (same); Whitney Info. Network Inc.

v. Xcentric Ventures, LLC, 2008 WL 450095 (M.D.Fla. 2008) (same); Global

Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F.Supp.2d 929 (D.Ariz. 2008)

(same).

         Like every prior case in which the CDA was found to protect Defendants,

the current action attempts to use creative lawyering and fancy-sounding

allegations to accomplish exactly what the law does not permit—imposing liability

on Defendants for material they did not create or alter in any material respect.

Courts have unanimously determined the CDA expressly prohibits this result and

nothing about this case warrants a different result.                             As such, Defendants are

entitled to summary judgment.

         II.       BACKGROUND FACTS

         Defendants           Xcentric        and       Ed      Magedson          operate   the   website

www.RipoffReport.com which allows consumers to post complaints and to review

complaints written by other users. Defendants’ Statement of Facts (“DSOF”) ¶ 1.

Plaintiffs Melissa A. Herman and David A. Russo are bankruptcy lawyers and
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partners in a firm, Herman & Russo, P.C., with offices in Woodstock, Georgia.

First Amended Complaint (“FAC”; Doc. #12) ¶¶ 1–3.

         This case arises from a single “report” posted on www.RipoffReport.com on

February 11, 2009 by an anonymous author identified as “John or Jane Doe”. The

text of this report is set forth in ¶ 39 of Plaintiffs’ First Amended Complaint.

DSOF ¶ 2. The report is written from the perspective of an unhappy former client

who stated that Plaintiffs accepted $30,000 to handle the author’s case but then

failed to return phone calls and otherwise neglected the case. DSOF ¶ 3. The

report contains a title with a similar message. DSOF ¶ 4.

         The Complaint does not allege that the substance of the report was created

by Defendants. Rather, the Complaint alleges that the report was created solely by

John/Jane Doe without any input from Defendants. DSOF ¶ 5. Defendants agree

that this allegation is entirely correct—the report was created solely by a third

party without any input or encouragement from Defendants. DSOF ¶ 6.

         Likewise, the Complaint does not allege that the title of the report was

created by Defendants.                   Rather, Paragraph 40 of the FAC alleges the author

John/Jane Doe created the report’s title without any input or co-development by

Defendants. DSOF ¶ 7. Again, Defendants agree that this is correct; every word

in the title as quoted in the FAC was created solely by a third party. DSOF ¶ 8.
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         Thus far, it is undisputed that every word which forms the basis for

Plaintiffs’ claims was created solely by John/Jane Doe without any input or

encouragement from Defendants. The next question is obvious: if Defendants did

not create the report or the title, what defamatory information did they create? The

answer is found in Paragraph 42 of the FAC which alleges that Defendants

“added” the words “Rip-off Report:” to the beginning of the title of John Doe’s

report.         DSOF ¶ 9.                Plaintiffs also allege that the website address

(www.RipoffReport.com) defames them, as well as the slogans “by consumers, for

consumers…” and “Don’t let them get away with it.” DSOF ¶ 10.                                The exact

location of this “added” content is shown in the screenshot below:



Text
“Added”
By
Defendants




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         Based on these facts, Plaintiffs seek to hold Defendants responsible for every

word of the entire posting, even the portions which Plaintiffs admit were not

created or altered by Defendants. This argument is directly contrary to well-settled

law. Summary judgment should therefore be entered in favor of Defendants as to

all claims in this case.

         III.      ARGUMENT

         Before tackling specific points, the court should note that this motion relies

on a crucial distinction—the distinction between text created by Defendants and

text created by a third party user of the Ripoff Report website. As a matter of

course and with one general exception,1 Defendants agree that the CDA does not

apply to text which they themselves created.                             This point is beyond dispute;

1
  The exception is as follows: users of the Ripoff Report website may choose to
place their report into a category such as “lawyers”. Although the actual words for
each category choice were created by Defendants, the decision to select those
words for a particular report is a choice made by the author, not by Defendants. As
a matter of law, Defendants are still entitled to CDA protection as to user-selected
category choices even if the words were initially created by Defendants; “This
minor and passive participation in the development of content will not defeat CDA
immunity, which can even withstand more active participation.” Global Royalties,
2007 WL 2949002 at *3 (citing Batzel v. Smith, 333 F.3d 1018, 1031 note 19 (9th
Cir. 2003)); see also Whitney Information Network, Inc. v. Xcentric Ventures, LLC,
2008 WL 450095, *10 (M.D.Fla. 2008) (noting, “the mere fact that Xcentric
provides categories from which a poster must make a selection in order to submit a
report on the ROR website is not sufficient to treat Defendants as information
content providers of the reports ….”); see also GW Equity, LLC v. Xcentric
Ventures, LLC, 2009 WL 62173, *5 (N.D.Tex. 2009) (same).
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“Essentially, the CDA protects website operators from liability as publishers, but

not from liability as authors.” Global Royalties, Ltd. v. Xcentric Ventures, LLC,

2007 WL 2949002, *3 (D.Ariz. 2007) (emphasis added). Of course, if the text

created by Defendants is not actionable, either because the text is not “of and

concerning” the plaintiff or because the text is non-actionable opinion, then claims

based on such content would fail even assuming the CDA does not apply.

         On the other hand, if defamatory text was created by a third party without

material alteration from Defendants, the CDA prohibits imputing liability to

Defendants for another person’s statements; “This is precisely the kind of situation

for which section 230 was designed to provide immunity.” Fair Housing Council

of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir.

2008). This distinction is pivotal because, “Under the CDA, website operators are

only considered ‘information content providers,’ for the information at issue that

the operators are responsible for creating or developing.” GW Equity, 2009 WL

62173, * 7 (emphasis added) (citing Carafano v. Metrosplash.com, Inc., 339 F.3d

1119, 1123 (9th Cir. 2003)).

         Put another way, if a website creates 1% of a posting, the site is liable only

as to that 1%. If the other 99% was created solely by a third party, the website is

not responsible for that part of the text. See Gentry v. eBay, Inc., 99 Cal.App.4th
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816, 833 note 11, 121 Cal.Rptr.2d 703, 717 note 11 (Cal.App.4th 2002)

(explaining, “the fact appellants allege eBay is an information content provider is

irrelevant if eBay did not itself create or develop the content for which appellants

seek to hold it liable. It is not inconsistent for eBay to be an interactive service

provider and also an information content provider; the categories are not mutually

exclusive. The critical issue is whether eBay acted as an information content

provider with respect to the information that appellants claim is false or

misleading.”) (emphasis added).

         As explained further herein, the standard for CDA immunity is clear and

simple—in order to overcome the CDA, Plaintiffs must show that Defendants are

responsible for creating defamatory statements about them and that those

statements are the ones for which Plaintiffs seek to hold Defendants liable. This

showing cannot be made here for three simple reasons:

         1.)       The undisputed facts show that Defendants did not create either the

                   report or the title at issue; this information was provided solely by a

                   third party. As such, the author may be liable to Plaintiffs for his/her

                   statements, but the CDA fully protects Defendants from liability as to

                   these statements;


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         2.)       To the extent Defendants “created” any content such as the words

                   “Rip-off Report:” these words are non-defamatory as a matter of law

                   and did not materially change the meaning of the original author’s

                   statements. As such, liability cannot be based on these statements;

         3.)       The remaining content created by Defendants (such as the website

                   address www.RipoffReport.com and general slogans on the site) is not

                   “of and concerning” Plaintiffs and is therefore not actionable by

                   Plaintiffs.

         These three dispositive points are based on facts which are entirely

undisputed. As such, summary judgment should be entered in favor of Defendants.

                   A. Defendants Did Not Create Any Of The Allegedly Defamatory
                      Text

         As described in Paragraph 39 of the FAC, on February 11, 2009 a third party

author identified as “John or Jane Doe” logged into the Ripoff Report website and

posted a report about Plaintiffs. The full text of this report is quoted verbatim in

Paragraph 39 of the FAC.

         Not surprisingly, the web page containing the report includes some content

from the author and some generic content created by Defendants. SOF ¶ 11.

When the user submitted this posting to the site, the author’s content was

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combined with the existing generic material to create the final standardized page

common to every report on the website. SOF ¶ 12.

     Generic Website Content                                      Original Content from Author




                                         Final Combined Web Page




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         The FAC clearly recognizes this distinction by carefully and, for the most

part, correctly separating the allegedly defamatory text created by the author “John

Doe”, see FAC ¶ 39, from the other generic text which Plaintiffs claim was

“added” after-the-fact by Defendants. See FAC ¶¶ 41–46. However, as a factual

matter, Plaintiffs have described the creation of the report in reverse order,

claiming that the author John Doe first created the text of his/her report, and that

after this was done, Defendants “then added their own original content to the

report.” FAC ¶ 39 (emphasis added). This presents the facts in backwards order

and in a deliberately misleading manner.

         In reality, the “original content” created by Xcentric and Magedson referred

to in ¶¶ 41–46 of the FAC is nothing more than generic text contained in the

website’s code which was created first, long before “John Doe” wrote the report at

issue here. DSOF ¶ 13. This code is part of the preexisting layout and format of

the Ripoff Report website and it is common to all 600,000+ user-generated reports

on the site. DSOF ¶ 14.                  Every page on the entire website includes the same

generic meta tags “rip-off, ripoff and rip off” which are used to identify the Ripoff

Report website, not to disparage Plaintiffs. DSOF ¶ 15.

         In fact, although the code/tags can be viewed by anyone with average

technical skills who actively chooses to view the source coding for the website,
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meta tags such as “rip-off, ripoff and rip off” are not visible when viewing the

report page about Plaintiffs. DSOF ¶ 16. Moreover, the tags are not statements

about Plaintiffs; these are merely indexing tools used to accurately describe the

contents and location of the Ripoff Report site. DSOF ¶ 17. If these tags were

removed from the report about Plaintiffs, the report itself would appear completely

unchanged to anyone viewing it. DSOF ¶ 18.

         As such, Defendants did not “add their own original content” to material

from the third-party author. On the contrary, the reverse is true—the author added

his/her text to the pre-existing generic templates on the Ripoff Report website.

DSOF ¶ 19. By doing so, the author caused the creation of the report about the

Plaintiffs (including the ‘meta tags’ and related contents) and caused Plaintiffs’

name to be associated with the domain name www.RipoffReport.com without any

involvement or input from Defendants. DSOF ¶ 20.

         In fact, prior to the commencement of this lawsuit, Mr. Magedson had never

heard of the Plaintiffs, never saw the report about Plaintiffs, and he added nothing

whatsoever to that report. DSOF ¶ 21. In addition, every report submitted to the

site is reviewed by a staff member (known as a “content monitor”) who is

authorized to remove certain types of offensive or confidential personal material.

DSOF ¶ 22. The content monitor who reviewed the report about Plaintiffs states
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that she did not create, alter, or add to the report in any way whatsoever. DSOF ¶

23. These facts are entirely undisputed and they are dispositive of all claims here.

         To the extent Plaintiffs seek to dispute the facts by claiming that Defendants

somehow altered or added to the text created by “John Doe” after it was submitted

to the site, there is simply no evidence to support that allegation because it simply

is not true. Nevertheless, the question of whether Defendants created content such

as the name “Ripoff Report” is ultimately immaterial to the disposition of this

motion because the fact that the posting at issue contains a combination of some

text from the third party author and some text from Defendants does not make

Defendants jointly liable for every word in the posting. This is not how the CDA

works. Rather, “Under the CDA, website operators are only considered

‘information content providers,’ for the information at issue that the operators are

responsible for creating or developing.”                         GW Equity, 2009 WL 62173, * 7

(emphasis added). Because the undisputed fact is that Defendants only created the

generic portions of the Ripoff Report website and did not create or alter any part of

the report about Plaintiffs, the CDA applies to bar Plaintiffs’ claims against

Defendants. On identical facts and as explained above, Defendants have prevailed

on summary judgment in every previous case where the merits of the issue was

addressed. See GW Equity, LLC v. Xcentric Ventures, LLC, 2009 WL 62173
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(N.D.Tex. 2009) (holding Xcentric and Magedson entitled to immunity under the

CDA); Intellect Art Multimedia, Inc. v. Milewski, 2009 WL 2915273 (N.Y.Sup.

2009) (same); Whitney Info. Network Inc. v. Xcentric Ventures, LLC, 2008 WL

450095 (M.D.Fla. 2008) (same); Global Royalties, Ltd. v. Xcentric Ventures, LLC,

544 F.Supp.2d 929 (D.Ariz. 2008) (same).

         Because Defendants are so clearly protected by the CDA, frustrated litigants

who dislike or disagree with the law (such as Plaintiffs) have attempted to

creatively plead their way around the CDA by falsely asserting that Defendants

materially contributed to the creation of the user-generated report in some manner.

In recent years, courts have strongly condemned such efforts and have explained

that the CDA must be broadly construed and interpreted to protect websites absent

clear evidence that the site directly contributed to the creation of illegal content:

         We must keep firmly in mind that this is an immunity statute we are
         expounding, a provision enacted to protect websites against the evil
         of liability for failure to remove offensive content. Websites are
         complicated enterprises, and there will always be close cases where
         a clever lawyer could argue that something the website operator did
         encouraged the illegality. Such close cases, we believe, must be
         resolved in favor of immunity, lest we cut the heart out of section
         230 by forcing websites to face death by ten thousand duck-bites,
         fighting off claims that they promoted or encouraged—or at least
         tacitly assented to—the illegality of third parties. Where it is very
         clear that the website directly participates in developing the alleged
         illegality … immunity will be lost. But in cases of enhancement by
         implication or development by inference … section 230 must be
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         interpreted to protect websites not merely from ultimate liability,
         but from having to fight costly and protracted legal battles.

Roommates.com, 521 F.3d at 1174–75 (emphasis added). In keeping with the

spirit of protecting websites from claims based on little more than “creative

lawyering”, courts have frequently held that the CDA applies even when a

defendant adds his own original content to defamatory statements from another

person.       See Hung Tan Phan v. Lang Van Pham, 182 Cal.App.4th 323, 105

Cal.Reptr.3d 791 (4th Dist. Ct. App. 2010).                         In Hung Tan Phan, the defendant

received an email which allegedly defamed the plaintiff in various ways. See

Hung Tan Phan, 182 Cal.App.4th at 325–26. The defendant forwarded the email

(which he did not write) to a third party along with an introductory comment

(which he did write). With these facts, the court framed the question as follows:

“What happens when you receive a defamatory e-mail and you forward it along,

but, in a message preceding the actual forwarded document, introduce it with some

language of your own?” Id. at 325 (emphasis added). This scenario is analogous

to the theory presented by Plaintiffs here.

         In arguing that the CDA should not apply, the plaintiff in Hung Tan Phan

suggested that because the defendant added his own comments to the defamatory

email before passing it along, he became responsible for the entire message

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including the text he did not create. See id. The trial court rejected this argument

and the California Court of Appeals affirmed, finding the defendant was entitled to

CDA immunity even though he added his own original content to the third party’s

email. This conclusion was based on “the rule that a defendant’s own acts must

materially contribute to the illegality of the internet message for immunity to be

lost.” Id. at 326 (emphasis in original). Because the defendant’s own words were

not defamatory, the Court of Appeals found the CDA applied because, “the only

possible defamatory content … found in the e-mail was the original content

received by defendant Pham from [the original author]. Nothing ‘created’ by

defendant Pham was itself defamatory.” Id. at 328. For that reason, the appellate

court affirmed the application of CDA immunity. See id.

         As discussed in Hung Tan Phan, many other courts have agreed with this

result. See generally Barrett v. Rosenthal, 40 Cal.4th 33, 51 Cal.Rptr.3d 55, 146

P.3d 510 (2006) (CDA provided immunity to defendant who posted an article

authored by a third party to an online newsgroup); Batzel v. Smith, 333 F.3d 1018

(9th Cir. 2003) (defendant who posted message from third party to an online

message board entitled to immunity under the CDA).                                    Consistent with these

standards, courts have routinely held that Xcentric and Magedson are entitled to

CDA         immunity          even       if   they       add      content        to   reports   posted   on
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www.RipoffReport.com by third parties.                           For example, this exact issue was

addressed in GW Equity, LLC v. Xcentric Ventures, LLC, 2009 WL 62173

(N.D.Tex. 2009) where the court was asked to consider, among other things,

whether CDA immunity would be lost based on allegations that Defendants added

“geographical information” to the titles of existing reports.

         Adhering to the traditional rules that CDA immunity will not be lost unless a

defendant is shown to have been directly involved in the creation of the material

which is defamatory, the District Court in GW Equity found that even if

Defendants added information to the title of a report, this was not sufficient to

cause a loss of immunity as to the entire report:

         The Court notes that courts have construed immunity under the CDA
         broadly in all cases arising from the publication of user-generated
         content. In addition, even were Defendants to lose CDA immunity
         with respect to geographical information in titles, the Court finds
         summary judgment would still be appropriate. Under the CDA,
         website operators are only considered “information content
         providers,” for the information at issue that the operators are
         responsible for creating or developing. Thus, even if Plaintiff could
         prove by a preponderance of the evidence that Defendants added
         geographical information to the allegedly disparaging titles of the
         disparaging reports at issue in this case, the Court finds the addition
         of geographical information alone would not be sufficient for
         Defendants to be liable for defamation/libel, interference with
         business relationship, business disparagement under Texas law,
         disclosure of trade secrets and confidential information, and civil
         conspiracy as a matter of law.

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GW Equity, 2009 WL 62173, *7 (emphasis added) (internal citations omitted)

(quoting Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003))

(citing Doe v. Myspace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)).

         Applying the GW Equity court’s logic to the present case, Defendants are

entitled to summary judgment under the CDA because to the extent Plaintiffs are

attempting to impose liability on Defendants for material created by a third party

(such as the body-text of the report as described in FAC ¶ 39 or the title as

described in FAC ¶ 40), this theory is expressly prohibited by the CDA. It is an

undisputed fact that Defendants did not create and did not alter either the body or

the title of the report. As such, Defendants are entitled to CDA immunity as to

any/all claims arising from that material.

         Of course, as the creators of the words “Ripoff Report:” and the website

address www.RipoffReport.com, the CDA is not implicated because Defendants

agree they created that material. However, this does not mean that summary

judgment should be denied. On the contrary, and bearing in mind that these same

facts were present in every past case in which summary judgment was granted in

favor of Defendants, summary judgment is still appropriate because taken in

context the term “Ripoff Report” is simply not defamatory as to Plaintiffs or to

anyone else.
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         First, as a matter of law, except in cases where the term implies the existence

of undisclosed facts which could be defamatory, the phrase “rip-off” is generally

an expression of opinion, not fact, and for that reason the term cannot support a

claim for defamation under Georgia law. See Jaillett v. Georgia Television Co.,

238 Ga.App. 885, 891 (Ga.App. 1999) (holding the term “rip off” was an opinion

incapable of supporting a defamation claim); Fuhrman v. EDS Nanston, Inc., 225

Ga.App. 190, 192, 483 S.E.2d 648 (Ga.App. 1997) (explaining, “The expression of

opinion on matters with respect to which reasonable men might entertain differing

opinions is not slanderous.”); see also Phantom Touring, Inc. v. Affiliated Pub.,

953 F.2d 724 (1st Cir. 1992) (article referring to an obscure production of Phantom

of the Opera as a “fake”, “rip-off” and a “fraud” was non-actionable opinion);

Beilenson v. Superior Court, 44 Cal.App.4th 944, 52 Cal.Rptr.2d 357 (2nd Dist.

1996) (finding statement in mailer accusing state official of “rip[ping] off”

constituents was “colorful epithet, [which] when taken in context with the other

information contained in the mailer, was rhetorical hyperbole … .”); Horowitz v.

Baker, 168 Ill.App.3d 603, 608, 523 N.E.2d 179, 182-183, 119 Ill.Dec. 711, 714 -

715 (Ill.App. 3 Dist. 1988) (finding use of the terms “sleazy”, “cheap”, “pull a fast

one”, “secret” and “rip-off” was non-actionable as “rhetorical hyperbole.”);

Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 379-380, 522 N.E.2d 959,
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962 (Mass. 1988) (statements accusing plaintiffs of being “insurance crooks,”

“engaged in insurance fraud” and “blatant and dramatic schemes ... to rip-off

Massachusetts policyholders,” was non-actionable expression of opinion); Rizzuto

v. Nexxus Products Co., 641 F.Supp. 473, 477 (S.D.N.Y. 1986) (statements

accusing plaintiff of being just “another company trying to RIP YOU OFF!” and

warning “DON’T LET THEM RIP YOU OFF!” were non-actionable opinions

because “even the most careless reader must have perceived that the word[s were]

no more than rhetorical hyperbole, a vigorous epithet used by those who

considered themselves unfairly treated and sought to bring what they alleged were

the true facts to the readers.”) (quoting Greenbelt Cooperative Publishing Ass'n v.

Bresler, 398 U.S. 6, 14, 90 S. Ct. 1537, 1541, 26 L.Ed.2d 6 (1970)); Telephone

Systems Int’l, Inc. v. Cecil, 2003 WL 22232908 (S.D.N.Y. 2003) (“The defamatory

statements, as alleged, are that Bayat said that Bentham and/or Cecil were ‘ripping

him off.’ These statements are figurative and hyperbolic, and are not capable of

being disproved.”)

         Second, as a factual matter, the term “Ripoff Report”, the website address

www.RipoffReport.com and the general slogans appearing on the site (i.e., “Don’t

let them get away with it!”) are not defamatory as to Plaintiffs because these

statements are not about Plaintiffs; they are merely the name of the website
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operated by Defendants, not expressions of fact about Plaintiffs. Indeed, “Rip-off

Report” is Defendants’ trademark registered with the United States Patent &

Trademark Office. DSOF ¶ 24. In order to establish a claim for defamation, “the

plaintiff has the burden of showing, inter alia, that ‘the publication was about the

plaintiff, that is, whether it was of and concerning her as a matter of identity.’”

Smith v. Stewart, 291 Ga.App. 86, 660 S.E.2d 882 (Ga.App. 2008) (quoting Pring

v. Penthouse Intl., 695 F.2d 438, 439 (10th Cir. 1982)).

         Even if the phrase “Ripoff Report” referred specifically to Plaintiffs (which

it does not), the term “ripoff” is a common epithet conveying the speaker’s

subjective opinion which cannot be conclusively proven true or false. Viewed in

context, no reasonable reader could conclude that the use of the term “Ripoff

Report” implies the existence of other undisclosed facts beyond the true fact that a

report has been posted on the website www.RipoffReport.com. This is particularly

so given that the front page of the website clearly explains that the term “ripoff”

refers to a consumer’s opinion which should NOT be relied upon as fact:

         Consumers, just because a company or individual is reported on Rip-
         off Report does not necessarily mean you should not do business with
         them. In many cases, it’s just the opposite. Just because a company
         is posted on Rip-off Report does not mean they are “bad”. At some
         point in time, everyone has felt like they’ve been ripped off, when
         that may not have been the case. Not everything published on the
         Internet, or local newspapers, or local TV news is always true. Many
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         stories, no matter where you see them, may have a bias slant. Being
         short on space or only having less than 2 minutes to do a story where
         important facts are left out can change the entire story. Rip-off Report
         feels consumers reading the unedited experiences of other consumers,
         without editorial involvement, are getting the best consumer
         opinion/news available.

SOF ¶ 24 (emphasis added). Under these circumstances, no reasonable reader

would believe that the application of the term “Ripoff Report” implies the

existence of any facts beyond those contained in the specific report(s) appearing on

the site. Ripoff Report clearly discloses to readers that reports on the site are the

opinions of the author, are not verified for accuracy, and should not discourage the

reader from patronizing the reported business. Whether or not it may have a

negative connotation, taken in context the undisputed facts show the term “ripoff”

is simply an expression of opinion which is not actionable as a matter of law.

         Although the exact issue presented has not been addressed before in

previous cases involving Defendants, an analogous concept was considered and

rejected by the District Court’s decision in Global Royalties, Ltd. v. Xcentric

Ventures, LLC, 544 F.Supp.2d 929 (D.Ariz. 2008). There, the plaintiff argued that

Xcentric and Magedson “encourage defamatory postings from others for their own

financial gain and, therefore, are partly responsible for the ‘creation or

development’ of the messages [posted by users of the site].” Global Royalties, 544

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F.Supp.2d at 932–33. In an opinion rejecting this argument, the District Court

explained, “It is obvious that a website entitled Ripoff Report encourages the

publication of defamatory content.                       However, there is no authority for the

proposition that this makes the website operator responsible, in whole or in part,

for the ‘creation or development’ of every post on the site.” Id. at 933 (emphasis

added). For this reason, the Global Royalties court agreed that Defendants were

entitled to immunity under the CDA.

         As the court held in Global Royalties, generic aspects of the Ripoff Report

site (such as its name and web address) may be negative and/or derogatory, but

ultimately the decision to post a complaint about someone on the site originates

entirely with the author who creates the complaint, not Defendants. Here, there is

no evidence and no allegation that Defendants specifically solicited “John Doe” to

create the report about Plaintiffs because they simply did not do so. The decision

to create the report about Plaintiffs originated entirely within the mind of the

author, and to the extent anything in the report is inaccurate, Plaintiffs’ remedy is

against the author, not against Xcentric or Magedson; “under § 230, plaintiff may

not seek recourse against [the website operator] as publisher of the offending

statements; instead, plaintiff must pursue his rights, if any, against the offending

[website] members themselves.” Noah v. AOL Time Warner, Inc., 261 F.Supp.2d
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532, 540 (E.D.Va. 2003) (citing Ben Ezra, Weinstein, & Co. v. America Online,

Inc., 206 F.3d 980, 986 (10th Cir. 2000)).

         Plaintiffs cannot overcome this result merely by pointing to minute aspects

of website code or Defendants’ creation of indexing tags used to make the Ripoff

Report site easier to find in search engines such as Google. Such efforts to

“generally augment” content from a third party is insufficient to defeat the CDA’s

“robust” immunity; “a website operator does not become liable as an ‘information

content provider’ merely by ‘augmenting the content [of online material]

generally.’” Goddard v. Google, Inc., 640 F.Supp.2d 1193, 1198 (N.D.Cal. 2009)

(brackets in original) (quoting Roommates, 521 F.3d at 1167–68)). The same is

true here.

         IV.       CONCLUSION

         The material facts of this case are not disputed. A third party posted a

derogatory complaint about Plaintiffs on the Ripoff Report website.                            This is

undisputed.          The complaint was not created by Defendants nor was it altered in

any material way. This is undisputed.                          Defendants created the website name

www.RipoffReport.com, generic code such as meta tags “rip-off, ripoff, and rip

off”, and the general slogans which appear on the site. This is undisputed.


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         Based on these undisputed facts, Defendants are entitled to summary

judgment in their favor as to any/all statements contained in the body of the report

as described in Paragraph 39 of the First Amended Complaint and the title of the

report as described in Paragraph 40 of the FAC.                                  There is no dispute that

Defendants did not create any of this information, and as such, the CDA precludes

Plaintiffs from imposing liability upon Defendants for the accuracy of these

statements. To the extent Defendants did create content such as the website name

“Ripoff Report” and the website address www.RipoffReport.com, these statements

are not actionable because they are not statements “of and concerning” Plaintiffs

and the term “ripoff” is simply an opinion, not a statement of fact.

         For the above reasons, Defendants move the Court for an order granting

them summary judgment as to all claims in this case pursuant to Fed. R. Civ. P. 56.

         Respectfully submitted this 17th day of August, 2010.

/s Megan K. Ouzts
Cameron Hill, Esq.
GA Bar No. 353447
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
1800 Republic Centre
633 Chestnut Street
Chattanooga, Tennessee 37450-1800
Phone: (423) 209-4160
Fax: (423) 752-9545
chill@bakerdonelson.com

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Megan Kreitner Ouzts, Esq.
GA Bar No. 142654
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
Monarch Plaza, Suite 1600
3414 Peachtree Road, N.E.
Atlanta, Georgia 30326-1164
Phone: (678) 406-8736
Fax: (678) 406-8836
mouzts@bakerdonelson.com

Maria Crimi Speth, Esq.
Arizona Bar No. 012574
Jaburg & Wilk, P.C.
3200 North Central Ave., Suite 2000
Phoenix, AZ 85012
Tel: (602) 248-1000
Fax: (602) 248-0522
Email: mcs@jaburgwilk.com
Admitted Pro Hac Vice

David Gingras, Esq.
Arizona Bar No. 021097
Xcentric Ventures, LLC
PO BOX 310
Tempe, AZ 85280
Tel.: (480) 668-3623
Fax: (480) 639-4996
Email: david@ripoffreport.com
Admitted Pro Hac Vice

Attorneys for Defendants




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                                CERTIFICATE OF COMPLIANCE

      Undersigned counsel certifies the foregoing document has been prepared
with one of the font and point selections (Times New Roman, 14 point) approved
by the Court in Local Rule 5.1(c) and 7.1(D).

         August 17, 2010                                                 /s Megan K. Ouzts
         Date                                                            Attorney for Defendants




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                        IN THE UNITED STATES DISTRICT COURT
                           NORTHERN DISTRICT OF GEORGIA
                                  ATLANTA DIVISION

HERMAN & RUSSO, P.C.;
MELISSA A. HERMAN;
DAVID A. RUSSO,
                                                                Case No: 10-CV-0398-CAP
         Plaintiffs,
         v.
XCENTRIC VENTURES, LLC, and
EDWARD MAGEDSON, and JOHN
OR JANE DOE,
         Defendants.

                                    CERTIFICATE OF SERVICE
      I hereby certify that I have this day caused to be served the foregoing
DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR
MOTION FOR SUMMARY JUDGMENT by filing a copy of same via the
Court's CM/ECF system, which will automatically send notification to the
following attorney(s) of record for Plaintiffs:

                                         Melissa A. Herman, Esq.
                                           David A. Russo, Esq.
                                          225 Creekstone Ridge
                                          Woodstock, GA 30188
                                         hermanrusso@gmail.com

                   8/17/2010                                             /s Megan K. Ouzts
                   Date                                                  Attorney for Defendants




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Description: This is a motion that led to another victory for a website sued by someone who didn't like what was posted about them by a user on the website. Ripoff Reports wins on this motion for summary judgment based on CDA Section 230. The lesson? Don't sue User Generated Content websites, like Docstoc if you don't like what is in a document posted by a Docstoc member to the Docstoc website. You will lose, and will need to pay attorneys fees and costs, and might get santioned.