Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
DANIEL PARISI, )
WHITEHOUSE.COM INC., )
WHITEHOUSE NETWORK LLC, )
WHITE HOUSE COMMUNICATIONS INC., ) Civil Action

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) No. 1:10-cv-00897-RJL
)
Plaintiffs )

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v. )
)
JEFFREY RENSE, )
LAWRENCE W. SINCLAIR a/k/a Larry Sinclair, )

or
BARNES & NOBLE, INC., )
BARNESANDNOBLE.COM LLC, )
AMAZON.COM, INC., )
BOOKS-A-MILLION, INC., and
SINCLAIR PUBLISHING, INC.,
at )
)
)
Defendants. )
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)

DEFENDANT AMAZON.COM, INC. S

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REPLY IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

Plaintiffs urge this Court to construe narrowly the statutory immunity granted to
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websites such as Amazon.com, Inc. ( Amazon.com ) and directly contravene the

repeated direction of Congress and the courts to apply that immunity broadly to prevent

the chilling of Internet discourse:

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Congress recognized the threat that tort-based lawsuits pose to freedom of

speech in the new and burgeoning Internet medium. Section 230 [of the
Communications Decency Act of 1996 ( CDA ), 47 U.S.C. § 230, et seq.] was
enacted, in part, to maintain the robust nature of Internet communication and,
accordingly, to keep government interference in the medium to a minimum.

Blumenthal v. Drudge, 992 F. Supp. 44, 50 (D.D.C. 1998) (quoting Zeran v. Am. Online,

Inc., 129 F.3d 327, 330 (4th Cir. 1997)). In so doing, Plaintiffs would have this Court

transform Amazon.com an online, Internet distributor of over 30 million book titles,

PDF processed with CutePDF evaluation edition www.CutePDF.com

 Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 2 of 26

including hundreds of thousands of digital books into a publisher that can be held liable

for the content of these titles. Such a ruling would create an impossible burden on

Amazon.com and other Internet hosts or providers. The CDA, and the First Amendment

values it embodies, preclude prosecution of this libel action against Amazon.com.

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Parisi s response does not contest two of the three elements of CDA immunity:

(1) Amazon.com is an interactive computer service, and (2) all Plaintiffs currently

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pleaded claims treat Amazon.com as the publisher or speaker of third-party content.

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 564 F. Supp. 2d 544, 548 (E.D. Va.

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2008) (outlining the three elements for CDA immunity), aff d by 591 F.3d 250 (4th Cir.

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2009). Thus, only the third element remains at issue whether the content in this case

was provided by another information content provider. To avoid immunity, Plaintiffs

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attempt to re-cast Amazon.com as a co-creator or co-developer of the challenged content.

But established case law, applied to the unrefuted record, demonstrates that Amazon.com
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did not create or develop either the electronic promotional content or the content of

Barack Obama & Larry Sinclair: Cocaine, Sex, Lies & Murder? ( Sinclair Book ),
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Congress concluded in the CDA that if an interactive computer service makes third-party

content available through the Internet and is sued in the capacity of a publisher, the

interactive computer service is immune from such claims unless it played a substantive
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role in the creation or development of the illegal content. Here, Amazon.com did not,

and is, therefore, entitled to immunity.

The Court should grant Amazon.com s summary judgment motion and dismiss all

of the claims against it.

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I. ARGUMENT

A. The CDA Unequivocally Bars All of Plaintiffs Claims Based on the

Promotional Content Posted on the Amazon.com Website.

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Because a straightforward application of the CDA bars Plaintiffs claims against

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Amazon.com, Plaintiffs float three novel theories in an effort to transform Amazon.com

into a developer or creator of the electronic promotional content for the Sinclair book.

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Dkt. No. 61, Plaintiffs Opposition to Amazon s Motion for Summary Judgment ( Parisi

Resp. ), at 19-23; Dkt. No. 1, Complaint ¶¶ 35-36 (challenging the Product Description
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section of Amazon.com s site) (hereinafter the Promotional Content ). None of these

theories are supportable under the CDA or any published case.

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First, Plaintiffs claim that Amazon.com became a creator or developer of the
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Promotional Content because it somehow adopted the content by failing to include a

byline, attribution, or disclaimer. Second, Plaintiffs argue that Amazon.com solicited

the content and can, therefore, be categorized as a creator or developer. Third, Plaintiffs
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speculate that Amazon.com somehow communicated with the author or promoters of the

Sinclair book to develop the Promotional Content. None of these theories is supportable,
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and Plaintiffs unprecedented expansion of the concepts of creation and development

should be rejected.

1. CDA Case Law Provides That Amazon.com Was Not the Creator or
Developer of the Promotional Content.

The facts in this case do not even approach the high bar that is required for an

interactive computer service to also be categorized as a creator or developer of content

under the CDA. In order to stimulate robust avenues of speech (Collins v. Purdue

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Univ., 703 F. Supp. 2d 862, 877 (N.D. Ind. 2010)), courts have held repeatedly that CDA

immunity must be construed broadly for interactive computer services, whereas the terms

creation and development must be construed narrowly to promote immunity.

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

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Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 701 (S.D.N.Y. 2009).

CDA immunity applies to all of the Promotional Content provided on Amazon.com s

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website because (1) the Promotional Content was provided to Amazon.com, an

interactive computer service, by a third-party information content provider, and (2)

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Amazon.com played no role in the creation or development of the Promotional Content.

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Contrary to Plaintiffs argument, an interactive computer service does not itself

become an information content provider unless that service directly contributes to the
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alleged illegality of the challenged content. Fair Housing Council v. Roommates.com,

LLC, 521 F.3d 1157, 1169 (9th Cir. 2008). For example, in Roommates, it was the
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Roommates.com website itself that required potential subscribers to provide personal

identifying information that violated the Fair Housing Act. 521 F.3d at 1166-67.
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However, simply providing a neutral gateway and tools for content distribution, as

Amazon.com did here, does not make Amazon.com a co-creator or co-developer of the

third-party Promotional Content. See 47 U.S.C. § 230(f)(3); Goddard v. Google, Inc.,

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640 F. Supp. 2d 1193, 1197 (N.D. Cal. 2009) ( even if a particular tool facilitate[s] the

expression of information, 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 (internal quotations

and citations omitted)). As explained in Roommates:

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A website operator who edits user-created content such as by correcting

spelling, removing obscenity or trimming for length retains his immunity for
any illegality in the user-created content, provided that the edits are unrelated to
the illegality. However, a website operator who edits in a manner that contributes
to the alleged illegality such as by removing the word not from a user s
message reading [Name] did not steal the artwork in order to transform an
innocent message into a libelous one is directly involved in the alleged illegality
and thus not immune.

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521 F.3d at 1169 (emphasis in original).

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Here, Amazon.com has demonstrated unequivocally that another information

content provider Sinclair s print-on-demand company Lightning provided the

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Promotional Content for the Sinclair book through an electronic feed. Dkt. No. 53-2,

Defendant Amazon.com, Inc. s Statement of Material Facts in Support of Motion for

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Summary Judgment ( SMF ), ¶¶ 17-23. Amazon.com demonstrated that it had no role in

the creation or development of the Promotional Content. SMF, ¶¶ 12, 15.

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Amazon.com s declaration described the technology that allowed Lightning to transmit
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the Promotional Content (SMF, ¶¶ 16-23), and attached screen shots to confirm that

Lightning transmitted the very same Promotional Content posted on Amazon.com s

website (SMF, ¶¶ 17, 23).1 Under the legal standard in Roommates, Amazon.com is not a
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creator or developer of this content, and therefore, cannot be categorized as an

information content provider ineligible for CDA immunity.

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1 Plaintiffs argue that their separate complaint filed in this Court against Lightning and
Ingram does not preclude them from arguing that Amazon.com played some role in the
creation and development of the challenged Promotional Content. Parisi Resp. at 21-22.
While this may be so, Amazon.com referred to the Parisi, et al. v. Ingram litigation to
demonstrate that Plaintiffs knew the sole, original source of the challenged Promotional
Content at the time this case was filed, and pleaded claims to that effect in a separate case
and subject to Rule 11. Plaintiffs claims against Lightning, in conjunction with their
lack of evidence that Amazon.com created or developed the content provided by
Lightning, compel dismissal of Plaintiffs claims under the CDA.

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Plaintiffs cite Whitney Information Network v. Xcentric Ventures, LLC, 199 Fed.

Appx. 738, 740 (11th Cir. 2006) (Parisi Resp. at 19), in which the defendant provided

only a naked assertion that it did not author, create, or develop the challenged content.

The record here makes this case the opposite of Whitney. The screen shot of the

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Lightning upload not only confirms the specific testimony on content distribution, it

includes the exact language posted on Amazon.com s website, which is also the exact

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language challenged in Paragraphs 35 and 36 of Plaintiffs Complaint: 100% true story

and You ll read how the Obama campaign used internet porn king Dan Parisi and Ph.D.

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fraud Edward L. Gelb to conduct a rigged polygraph exam in an attempt to make the

Sinclair story go away. at

See Dkt. No. 53-4, Declaration of Daphne Durham in

Support of Defendant Amazon.com, Inc. s Motion for Summary Judgment ( Durham

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Decl. ), Ex. 2; Durham Decl. Ex. 1 (screen shot of Amazon.com website); Dkt. No. 61-1,

Declaration of Richard J. Oparil in Support of Plaintiffs Opposition to Amazon s Motion

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for Summary Judgment ( Oparil Decl. ), Exs. 13, 14, 15, 17 (screen shots of

Amazon.com s website from April 2010 through October 2010).

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Plaintiffs speculation that Amazon.com may have communicated with the author

and promoters of the Sinclair book to develop the Promotional Content is exactly that

speculation unsupported by any evidence. Parisi Resp. at 20-21. Moreover, Plaintiffs

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would have this Court believe that three competitors Amazon.com,

barnesandnoble.com, and Books-A-Million all colluded with Lightning and/or Sinclair

to develop the identical promotional content for their websites.2 Plaintiffs speculation,

2Dkt. No. 1, Complaint, ¶¶ 35, 36, 38, 39 (Plaintiffs Complaint quotes the same
promotional content from the barnesandnoble.com, Amazon.com, and Books-A-Million
websites); Dkt. No. 60-1, Declaration of David Bock in support of Barnes & Noble, Inc.

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contrary to the uncontested facts, is absurd on its face.

When a party opposing a motion for summary judgment seeks to rebut facts set

forth in the movant s Statement of Material Facts by merely citing to allegations in the

complaint rather than citing to evidence in the record or providing evidentiary support

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through affidavits or other competent evidence, those facts may be deemed admitted.

Blumenthal, 992 F. Supp. at 50 n.9 (emphasis added) (citations omitted).3 Because

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Plaintiffs provide no evidentiary support to counter Amazon.com s testimony that it did

not author, create, or develop the Promotional Content, in whole or in part (47 U.S.C. §

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230(f)(3)), Amazon.com s Statement of Material Facts on this point must be deemed

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admitted. The undisputed record and CDA case law establish on summary judgment that

Amazon.com, an interactive computer service, was not the creator or developer of the
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challenged Promotional Content. CDA immunity for that content should be granted.
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and Barnesandnoble.com, LLC s Motion for Summary Judgment ( Bock Decl. ), ¶¶ 10-
14, 18-23; Bock Decl., Ex. C (Lightning upload files to barnesandnoble.com, showing
identical Sinclair book promotional content); Dkt. No. 43-10 & Dkt. No. 43-11, Exs. 9 &
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10 to Declaration of Richard J. Oparil in support of Plaintiffs Opposition to Books-A-

Million Motion to Dismiss (screen shots of promotional content posted on Books-A-
Million website); see also Dkt. No. 60, Memorandum of Points and Authorities In
Support of Barnes & Noble, Inc. and Barnesandnoble.com, LLC s Motion for Summary
Judgment, at 1, 3-6, 17-18; Dkt. No. 60, Barnes & Noble, Inc. and Barnesandnoble.com,
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LLC s Statement of Undisputed Material Facts, ¶¶ 23-30, 33-39.

3 Amazon.com has filed with this Reply a Motion to Strike page 20 of Parisi s Opposition
brief (Parisi Resp. at 20), Paragraph 17 of Plaintiffs Statement of Disputed Material
Facts, and Paragraph 29 of the Oparil Declaration. There Plaintiffs refer to an
unauthenticated block quote excerpt purportedly drawn from a July 19, 2009 Sinclair
website posting included in these three pleadings. Parisi Resp. at 20; Dkt. No. 61-5,
Plaintiffs Statement of Disputed Material Facts ( SDMF ), ¶ 17; Oparil Decl., ¶ 29. The
alleged posting says nothing about Sinclair s purported collaboration with Amazon.com
to create or develop the Promotional Content for the Sinclair book. At any rate, as
explained in the Motion to Strike, it is not the competent evidence required by
Blumenthal to defeat a motion for summary judgment.

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2. Nothing in the CDA or Its Case Law Withholds Immunity Where

Third-Party Content is Not Attributed to Its Provider or Disclaimed
by the Interactive Computer Service.

Plaintiffs alternative argument that Amazon.com can be held liable because it

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purportedly adopted or ratified the Promotional Content runs even further afield.

First, the plain language of the CDA does not require that content made available

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through an interactive computer service have a disclaimer, attribution, or byline in order

for the interactive computer service to receive immunity.

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Second, none of the cases cited by the Plaintiffs on pages 22 and 23 of their brief

support that artificial and unsupported constriction of CDA immunity. Pasqualini v.

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MortgageIT, Inc., 498 F. Supp. 2d 659 (S.D.N.Y. 2007), and Rice v. Rose & Atkinson,
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176 F. Supp. 2d 585, 591 (S.D. W.Va. 2001), do not even mention the CDA and do not

involve websites or the Internet. Anthony v. Yahoo, Inc., 421 F. Supp. 2d 1257, 1263
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(N.D. Cal. 2006), denied Yahoo s motion to dismiss based on the CDA because Yahoo

was accused of manufacturing false dating profiles to lure users onto its site. Finally, in
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Donato v. Moldow, 865 A.2d 711, 725 (N.J. Super. 2005), the court specifically held the

website operator immune from anonymous postings on the site.

Plaintiffs seem to assert that because the Promotional Content in this case was
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organized under a website heading Product Description that Amazon.com should be

liable for the substance of the content. Parisi Resp. at 22 ( Any reasonable person would

read the Product Description as being one created by or for Amazon, or at the very least,

one that Amazon stood behind. ). Website headings, however, do not convert an

interactive computer service into a creator or developer of content. See Nemet Chevrolet,

564 F. Supp. 2d at 549-50 (a plaintiff must allege that the titles, headings, or categories

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themselves are causing the injury in order to defeat a motion to dismiss based on CDA

immunity), aff d by 591 F.3d at 257; Global Royalties, Ltd. v. Xcentric Ventures, LLC,

544 F. Supp. 2d 929, 932 (D. Ariz. 2008); see also Chicago Lawyer s Committee for

Civil Rights Under the Law, Inc. v. Craigslist, Inc., 461 F. Supp. 2d 681, 698-99 (N.D.

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Ill. 2006), aff d by 519 F.3d 666, 671-72 (7th Cir. 2008).

In sum, Amazon.com plainly qualifies for CDA immunity even though it did not

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specifically disclaim the Promotional Content by byline or other attribution.

3. Nothing in the CDA or Its Case Law Withholds Immunity Where an

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Interactive Computer Service Generally Invites Third-Party Content
or Contracts With A Third-Party Content Provider.

Finally, Plaintiffs argue that Amazon.com s role in solicit[ing] the Sinclair

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content makes it a co-creator or co-developer of the challenged Promotional Content.
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Parisi Resp. at 23. Unless they actually solicit the harmful content, however, interactive

computer services such as Amazon.com simply are not creators or developers.

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Roommates, 521 F.3d at 1169.

Plaintiffs assert that because Amazon.com enters into contracts with third-party
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content providers, this equates to active solicitation of illegal material. As this Court

ruled in Blumenthal, however, contracting with a content provider does not waive CDA

immunity. Similar to AOL in Blumenthal, Amazon.com enters into contracts with

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countless information content providers who make their content available through

Amazon.com. This contractual relationship between Amazon.com and the information

content provider does not disqualify Amazon.com from CDA immunity, just as AOL s

contract with Matt Drudge to make the Drudge Report available through AOL s website

did not disqualify AOL from immunity. Blumenthal, 992 F. Supp. at 51-52; cf. Schneider

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v. Amazon.com, Inc., 31 P.3d 37, 42-43 (Wash. Ct. App. 2001) (licensing agreement with

information content provider did not disqualify Amazon.com from immunity).

Plaintiffs cite to Hy Cite Corp. v. Badbusinessbureau.com, LLC, 418 F. Supp. 2d

1142 (D. Ariz. 2005), and FTC v. Accusearch, Inc., 2007 WL 4356786 (D. Wyo. Sept.

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28, 2007) (Parisi Resp. at 23), neither of which support their solicitation theory. In Hy

Cite, the court rejected a motion to dismiss based on CDA immunity because the

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pleadings alleged that the challenged content may have been written by the website

operators. 418 F. Supp. 2d at 1149 ( Plaintiffs allege that Defendants produce original

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content contained in the Rip-off Reports. Defendants are not entitled to immunity

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under the CDA at this stage of the case. (emphasis added)).4 In Accusearch, the

defendant website played a direct role in collecting and compiling the illegal content
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private phone records that could not be posted on the Internet. 2007 WL 4356786, at *1,

*6. The undisputed record here shows that Amazon.com did not specifically solicit the
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challenged aspects of the Sinclair Promotional Content, and Plaintiffs claims with

respect to the Promotional Content must be dismissed.

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B. The CDA Also Bars Plaintiffs Claims Related to the Content of the Sinclair
Book.

The CDA also immunizes Amazon.com for claims arising from statements in the
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Sinclair book. Plaintiffs arguments regarding the book content are divided by format, so

this Reply will treat each separately. The legal conclusions are the same, however sale

4 To the extent that the court in Hy Cite also denied the motion to dismiss based on the
solicitation allegations, nothing in the decision suggests that solicitation in and of itself
leads to ineligibility for CDA immunity. Blumenthal and Roommates make clear that the
solicitation must contribute[] to the alleged illegality. Roommates, 521 F.3d at 1169.
Plaintiffs in Hy Cite alleged that the nature of the solicitation in the case contributed to
the illegality.

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or distribution of third-party content over the Internet does not give rise to liability of the

website operator.

1. Kindle Version Distributed Through the Internet.

Plaintiffs contend that the CDA does not apply to Amazon.com s distribution of

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the Kindle version of the Sinclair book through the Internet, even though Amazon.com

neither created nor developed the content.

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Plaintiffs first assert Amazon.com should not receive immunity because it may

reject a Kindle submission, and may apply guidelines related to issues such as obscenity,

or
infringement of intellectual property rights, and privacy. Parisi Resp. at 17-19; Oparil

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Decl., Ex. 12. But the CDA is a Good Samaritan statute adopted to encourage exactly

this type of screening. 47 U.S.C. § 230(c). Moreover, Amazon.com did not remove or
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alter any of the Sinclair promotional or book content, aside from screening out duplicate

posts in the Promotional Content. SMF, ¶¶ 15, 23, 25-28. [I]f actual editing does not
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create liability, the mere right to edit can hardly do so. Schneider, 31 P.3d at 43.

Congress enacted the CDA to protect interactive computer services like

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Amazon.com that engage in proactive efforts to prevent the dissemination of obscene or

defamatory material. Thus, efforts to impose content guidelines and reserved rights to

edit, delete, withdraw or withhold content from publication are covered by CDA
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immunity and not, as Plaintiffs argue, a hook to impose liability:

First, Congress wanted to encourage the unfettered and unregulated development

of free speech on the Internet, and to promote the development of e-commerce.

The second reason for enacting § 230(c) was to encourage interactive computer
services and users of such services to self-police the Internet for obscenity and
other offensive material, so as to aid parents in limiting their children s access to
such material. See § 230(b)(4);

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Batzel v. Smith, 333 F.3d 1018, 1027-28 (9th Cir. 2003); see also Blumenthal, 992 F.

Supp. at 51-52; Schneider, 31 P.3d at 43 (holding that CDA immunity applied to online

customer reviews even though Amazon.com had contractual rights with its website users

to edit or refuse to post their book reviews); Roommates, 521 F.3d at 1169.

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Plaintiffs claim (falsely) that [t]here are no cases holding that the CDA would

apply to Amazon s Kindle business that is based upon a contract between Amazon and

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the author, particularly where the contract gives Amazon the absolute right to accept a

book for Kindle publication and the contents of such book. Parisi Resp. at 19. But

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Blumenthal rejected specifically the argument that an interactive computer service like

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Amazon.com entitled to CDA immunity loses that immunity when it contracts with an

information content provider that provides the challenged content:

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[Drudge] is a person with whom AOL contracted, whom AOL paid $3,000 a
month-$36,000 a year, Drudge s sole, consistent source of income-and whom
AOL promoted to its subscribers and potential subscribers as a reason to subscribe
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to AOL. Furthermore, the license agreement between AOL and Drudge by its
terms contemplates more than a passive role for AOL; in it, AOL reserves the
right to remove, or direct [Drudge] to remove, any content which, as reasonably
determined by AOL ... violates AOL s then-standard Terms of Service.... By the
terms of the agreement, AOL also is entitled to require reasonable changes to ...
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content, to the extent such content will, in AOL s good faith judgment, adversely
affect operations of the AOL network.
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Because it has the right to exercise editorial control over those with whom it
contracts and whose words it disseminates, it would seem only fair to hold AOL
to the liability standards applied to a publisher or, at least, like a book store owner
or library, to the liability standards applied to a distributor. But Congress has
made a different policy choice by providing immunity even where the interactive
service provider has an active, even aggressive role in making available content
prepared by others.

992 F. Supp. at 51-52 (emphasis added) (footnotes and citations omitted); see also Ben

Ezra, Weinstein & Co., Inc. v. Am. Online Inc., 206 F.3d 980, 985-86 (10th Cir. 2000)

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(holding that AOL was not liable for inaccurate stock information that it contracted for

posting on its website).

This Court applied CDA immunity to AOL even though AOL had a contractual

right to remove content that AOL reasonably determine[s] to violate AOL s then

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standard terms of service from the Drudge Report available on its site. Blumenthal, 992

F. Supp. at 47. CDA immunity applies equally to Amazon.com even where it reserves

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the right to remove Kindle content under certain circumstances.

Plaintiffs also suggest that CDA immunity is not available for the Kindle version

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of the Sinclair book because Amazon.com did not sufficiently demonstrate that the

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Kindle version was information provided through the Internet or any other interactive

computer service pursuant to 47 U.S.C. § 230(f)(3). Parisi Resp. at 19. There is no

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dispute, however, that Amazon.com distributes content through Internet transactions.

Here, the record establishes that Amazon.com is an entirely Internet-based retailer. SMF,
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¶¶ 1, 2, 8, 30. Consumers upload Amazon.com s Kindle versions via the Internet to an

electronic wireless reading device (the Kindle), or to other similar devices. SMF, ¶ 8; see
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also Oparil Decl., Ex. 10 (Amazon.com Digital Publication Distribution Agreement §

5.5; granting Amazon.com the right to display, market, transmit, distribute, sell and

otherwise digitally make available all or any portion of Digital Books for customers
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and prospective customers to download, access, copy and paste, print, annotate and/or

view online and offline, including on portable devices ). Immunity is established for

claims that attempt to hold Amazon.com, an interactive computer service, liable for third-

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party content disseminated through the Internet, whether the dissemination occurs by

upload, download or other form of Internet sale.5

2. The Paper Version Distributed Through the Internet.

For three reasons, Parisi s attempt to limit immunity arising from Internet sales of

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the traditional version of the Sinclair book also must fail. First, the plain language of the

CDA justifies no distinction between versions of the Sinclair book. Second, contrary to

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Plaintiffs misstatements, Amazon.com cited case law supporting this position, Gentry v.

Ebay, Inc., 121 Cal. Rptr. 2d 703 (Cal. Ct. App. 2002), which Plaintiffs ignored. This

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authority is buttressed by the required broad construction of CDA immunity. Finally,

Plaintiffs authorities do not support their argument. CDA immunity applies to claims
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arising from the content distributed by Amazon.com through the Internet.
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CDA immunity applies to any information provided by another information

content provider. 47 U.S.C. § 230(c)(1) (emphasis added). The definition of

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information content provider pertains to any person or entity that is responsible, in

whole or in part, for the creation or development of information provided through the
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Internet or any other interactive computer service. Id. § 230(f)(3) (emphasis added).

Plaintiffs contend [t]here is no allegation by any party to this case that the contents of

the paper book itself were uploaded to Amazon using the internet for sale in hardcover or
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paperback. A tangible product is shipped by Amazon to purchasers. Parisi Resp. at 7.

5 The CDA does not require, as Plaintiffs suggest, that content be provided over the
Internet to the interactive computer service. 47 U.S.C. § 230. Even if this were a
requirement, Amazon.com s Statement of Material Facts made clear that Amazon.com
did in fact receive the digital Kindle version of the Sinclair book from Defendant Sinclair
Publishing through an Internet upload. SMF, ¶¶ 2, 8, 30; see also Supplemental
Declaration of Jeff Tollefson in Support of Amazon.com s Reply on Summary Judgment,
¶ 4.

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This argument misses the point. Amazon.com distributed the Sinclair book

(whether in hardback, paperback, or Kindle format) solely through the Internet. SMF, ¶¶

2-3, 16-23, 30-34. Plaintiffs concede, as they must, that all versions of the book were

provided through the Amazon.com interactive computer service, and were provided to

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Amazon.com for that very purpose. Dkt. No. 1, Complaint ¶¶ 34, 36, 37; Oparil Decl., ¶¶

4-12 & Exs. 1-9. As noted above, the Kindle version is itself uploaded through the

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Internet. SMF, ¶¶ 8, 30; see also Oparil Decl., Ex. 10 (Amazon.com Digital Publication

Distribution Agreement § 5.5). Plaintiffs claims, therefore, attempt to hold Amazon.com

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responsible for content plainly provided through the Internet or any other interactive

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computer service, 47 U.S.C. § 230(f)(3), and purchased by consumers solely through

Internet transactions.
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In Gentry v. Ebay, Inc., discussed in Amazon.com s motion, the plaintiffs sued

eBay for violations of California s Autographed Sports Memorabilia statute, negligence,

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and unfair business practices for the sale of unauthenticated sports memorabilia on the

eBay website. The claims pertained to both the online statements made on the eBay
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website and the sale of unauthenticated memorabilia through the website. The court held

that the CDA immunized eBay from all of the claims. 121 Cal. Rptr. at 707-08, 712 &

n.5. Selling third-party content over the Internet does not render the website an
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information content provider, and the immunity under the CDA continues to apply. 121

Cal. Rptr. at 717-19. Like eBay in Gentry, all of the claims against Amazon.com should

be dismissed based on the CDA regardless of whether Amazon.com was distributing

hardcover, paperback, or Kindle versions of the Sinclair book through Internet sales.

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 Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 16 of 26

Plaintiffs cite to Roommates, 521 F.3d 1157, Batzel, 333 F.3d 1018, and

Blumenthal, 992 F. Supp. 44, but none of these cases involved the question of whether

tangible publications provided or distributed through the Internet could ever disqualify an

interactive computer service from CDA immunity. As noted in Section I.A.1., supra,

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Roommates focused solely on whether an interactive computer service contributed to the

illegality of an electronic website advertisement such that it could be considered both the

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interactive computer service and the information content provider, and therefore,

ineligible for CDA immunity. 521 F.3d at 1162-63. Blumenthal focused solely on

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whether an interactive computer service AOL was also the information content

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provider for the challenged electronic content because AOL had the contractual right to

remove the content from its website. 992 F. Supp. at 50-52. Neither decision addressed
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the application of the CDA to electronic content vs. tangible content provided or

distributed through the Internet.

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In particular, Batzel stands in stark contrast to this case. Plaintiffs selectively

quote from Batzel to claim that CDA immunity can never apply to content ultimately
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delivered in hard copy regardless of whether it also was provided to the interactive

computer service for distribution over the Internet. Parisi Resp. at 8-9. Nothing in Batzel

precludes CDA immunity for content that may be sold over the Internet in a tangible
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form. The court concluded that an interactive computer service was not eligible for CDA

immunity if the content it posted on its website a private email was not intended for

publication in any form whatsoever. Id. at 1022, 1033-34. In contrast, Sinclair and his

print-on-demand company Lightning specifically created and developed the Sinclair book

(in hardback, paperback, and Kindle form), for distribution through the Internet by

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 Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 17 of 26

interactive computer services that received the content (e.g., Amazon.com,

barnesandnoble.com). Unlike Batzel, this case does not involve the receipt of material

for non-publication. Id. at 1034 ( The congressional objectives in passing § 230

therefore are not furthered by providing immunity in instances where posted material was

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clearly not meant for publication. ). This distinction was critical to Batzel s holding,

because providing immunity based on material the author never intended to publish

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would create a scenario where no party could be held accountable for the content here,

of course, Sinclair and Sinclair Publishing may still be held liable. Id. at 1033.

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Gentry demonstrates that Amazon.com s reading of the CDA is correct: where

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material is provided for distribution through the Internet, both electronically (the website-

posted Promotional Content and the electronically uploaded Kindle version of the book)
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and in tangible formats (the hardcover and paperback versions of the book distributed

over the Internet), the key question is whether any resulting legal claim requires that
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Amazon.com, the interactive computer service, be treated as a speaker or publisher of the

content at issue. E.g., Chicago Lawyer s Committee, 461 F. Supp. 2d at 684-86, aff d by
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519 F.3d at 671. Here, all of Plaintiffs claims meet this standard. Dkt. No. 53-1,

Defendant Amazon.com, Inc. s Memorandum of Points and Authorities in Support of

Motion for Summary Judgment ( Amazon.com Memo ), at 14-16. This Court should
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grant Amazon.com s summary judgment motion and apply CDA immunity to the

Promotional Content and the Kindle, hardcover, and paperback versions of the Sinclair

book.

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 Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 18 of 26

C. Plaintiffs Notice Arguments Do Not Save Plaintiffs Claims from Summary

Judgment Dismissal.

Plaintiffs spend eight pages nearly a third of their brief on an argument

Amazon.com did not make and that is entirely irrelevant to the dismissal of Plaintiffs

claims mandated by the CDA.6 Plaintiffs contend that because they sent a demand letter

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and filed a complaint, Amazon.com had notice, and therefore, Amazon.com cannot

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invoke the limited liability afforded to a bookseller at common law. Parisi Resp. at 9-17.

Amazon.com disputes the premise that a demand letter and a complaint would constitute

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actionable notice at common law otherwise the notice requirement would be illusory.7

But, the question of notice has no bearing on immunity under the CDA, which is distinct
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from common law and is the only issue raised in the present motion.8
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6Indeed, because it is entirely unnecessary to address common law notice-based
distributor liability claims in dismissing all of Plaintiffs claims against Amazon.com
under the CDA, Amazon.com specifically reserved all argument as to any such claims.
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Amazon.com Memo at 2 n.2.

7 Courts are loathe to conclude that a distributor had reason to know of potentially
libelous material unless very special and rare circumstances exist to show the
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distributor s knowledge of the allegedly libelous statements. Spence v. Flynt, 647 F.

Supp. 1266, 1273 (D. Wyo. 1986). Amazon.com makes tens of millions of books
available for purchase on its website. SMF, ¶¶ 4, 8, 9. Plaintiffs arguments that
Amazon.com should have known that Sinclair would be the source of a notoriously
sensational or scandalous book (Parisi Resp. at 15), are simply not supported by the case
law. Dworkin v. Hustler Magazine, Inc., 611 F. Supp. 781, 785-87 (D. Wyo. 1985)
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(holding that even though the distributor knew that Hustler sometimes published
scandalous material, that Hustler had been sued for libel in other states, and that Hustler s
publisher Larry Flynt engaged in contemptuous courtroom behavior, the distributor at
that time still had no reason to know of or investigate the Hustler issue in which the
allegedly libelous material was located; knowledge of prior defamation litigation or
questionable behavior does not equal knowledge of the defamatory content because, if so,
every distributor of publications, including publications such as Time and the New York
Times, would have to check each issue, at his peril, for possible libelous statements ).
8Plaintiffs also suggest on page 10 of their response that CDA immunity should not
apply to Amazon.com and that common law notice-based distributor liability should be
applied because other courts have described Amazon.com as a traditional bookseller.

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 Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 19 of 26

Under the CDA, courts have repeatedly considered and roundly rejected the idea

that notice has any bearing on statutory immunity. Goddard, 640 F. Supp. 2d at 1198

( 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

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content (emphasis in original) (internal quotations and citations omitted)); Global

Royalties, 544 F. Supp. 2d at 931-32 ( In light of Congress goals to encourage

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development of the internet and to prevent the threat of liability from stifling free

expression, CDA immunity has been interpreted very broadly. Website-operator liability

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based on notice has been rejected, because each notification would require a careful yet

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rapid investigation of the circumstances surrounding the posted information, a legal

judgment concerning the information s defamatory character, and an on-the-spot editorial

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decision whether to risk liability by allowing continued publication. (internal quotations

and citations omitted)); Universal Communication Sys., Inc. v. Lycos, Inc., 478 F.3d 413,
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420 (1st Cir. 2007) ( We join the other courts that have held that Section 230

immunity applies even after notice of the potentially unlawful nature of the third-party
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content. ).

The CDA explicitly rejects notice-based liability because it provides interactive

computer services with the reserved right to screen and edit third-party content.
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Blumenthal, 992 F. Supp. at 52 ( such notice-based liability would deter service

Parisi Resp. at 10 (citing Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1325 (11th Cir.
2006), and Curran v. Amazon.com, Inc., 2008 WL 472433 (S.D. W. Va. Feb. 19, 2008)).
Neither case stands for this proposition. The court in Almeida held that it did not need to
address CDA immunity because the plaintiff s right of publicity claim would not survive
a motion to dismiss anyway. 456 F.3d at 1324. On a 12(b)(6) motion to dismiss, the
court in Curran also did not address the application of the CDA to Amazon.com because
Amazon.com had not raised it at that stage of the case as a potential defense. 2008 WL
472433, at *11-15.

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 Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 20 of 26

providers from regulating the dissemination of offensive material over their own

services by confronting them with ceaseless choices of suppressing controversial speech

or sustaining prohibitive liability -exactly what Congress intended to insulate them from

in Section 230 (quoting Zeran, 129 F.3d at 333)). As numerous cases and the statute

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itself make clear, CDA immunity covers Amazon.com regardless of whether it had notice

of the challenged content.

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D. None of Plaintiffs Additional Claims Prevent Summary Judgment.

Effectively acknowledging that there is no basis whatsoever in this case to avoid

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CDA immunity as to Amazon.com, Plaintiffs attempt to reinvent their case to avoid

summary judgment. Plaintiffs also request discovery, but fail to meet the standard of
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Federal Rule of Civil Procedure 56(f). None of Plaintiffs eleventh-hour arguments
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preclude dismissal.

1. Plaintiffs Right of Publicity and Third-Party Beneficiary Contract

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Claims Are Not Included in Their Complaint and Are Not Supported
by the Record or Case Law.

Plaintiffs first assert that their False Light Invasion/Misappropriation of Privacy

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claim should be recharacterized as a right of publicity claim (Parisi Resp. at 23-26) and

that they should be permitted to plead a third-party beneficiary contract claim (Parisi

Resp. at 26-28). Neither new claim would save Plaintiffs case against Amazon.com
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from dismissal based on CDA immunity. Even if there were some basis for Plaintiffs to

amend their complaint at this stage, both proposed amendments would be futile.

Plaintiffs attempt to assert a contract claim based on their purported status as

third-party beneficiaries. Contrary to Plaintiffs claim that Amazon.com s Digital

Publication Distribution Agreement ( DPDA ) does not contain any provision that it

does not preclude claims by third party beneficiaries (Parisi Resp. at 27), Section 10 of

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 Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 21 of 26

the Amazon.com DPDA (Oparil Decl., Ex. 10) explicitly states that the contract has no

third-party beneficiaries and provides no remedies for third parties: This Agreement

does not confer upon any other person other than the parties any rights or remedies

hereunder. (Emphasis added.) See Ramos v. Arnold, 169 P.3d 482, 487 (Wash. Ct.

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App. 2007) ( A party is a third party beneficiary only if the contracting parties intend to

create such a relationship at the time the contract is formed: The creation of a third-party

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beneficiary contract requires that the parties intend that the promisor assume a direct

obligation to the intended beneficiary at the time they enter into the contract. The test of

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intent is an objective one. (emphasis added) (internal citations omitted)).9 Section 10 of

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the DPDA explicitly precludes the possibility that Amazon.com and its contracting

parties expressly or impliedly intended Plaintiffs to be third-party beneficiaries of the

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agreement.

With respect to Plaintiffs right of publicity argument, the elements of a right of

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publicity claim include (i) a misappropriation of plaintiff s identity or persona, (ii) for the

use or benefit of the defendant. Vassiliades v. Garfinckel s, 492 A.2d 580, 587 (D.C.
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1985). Plaintiffs pleaded neither element in their complaint. Even if the Court granted

Plaintiffs leave to amend their Complaint to include a right of publicity claim, that claim

should also be barred by the CDA. See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102,
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1119 (9th Cir. 2007)10; see also Dkt. No. 60, Memorandum of Points and Authorities In

9Plaintiffs erroneously cite District of Columbia common law to support their third-party
beneficiary contract claim. Parisi Decl. at 28. The DPDA contains a Washington choice
of law provision and requires that all contract disputes be litigated in the state and federal
courts of Washington. Oparil Decl., Ex. 10 (§ 10).
10 Plaintiffs attempt to show that Perfect 10 is bad law. Plaintiffs are in error. Only Doe
v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 299-300 (D.N.H. 2008), held
contrary to the Ninth Circuit on whether CDA immunity applies to a state law right of

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 Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 22 of 26

Support of Barnes & Noble, Inc. and Barnesandnoble.com, LLC s Motion for Summary

Judgment, at 21-22.

Plainitffs meandering stream of shifting legal theories cannot evade the dams

imposed by the CDA. All claims before the Court are barred, and any amendment as

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proposed would be futile. Ahuja v. Detica, Inc., --- F. Supp. 2d ---, 2010 WL 3833956, at

*15 (D.D.C. Sept. 30, 2010) (repleading should not be allowed in face of dismissal if it

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would be futile).

2. Additional Discovery is Unnecessary.

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Plaintiffs contend that summary judgment should be denied pursuant to Federal

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Rule of Civil Procedure Rule 56(f) because discovery is needed on: (a) evidence

relating to Amazon s knowledge of the defamatory statements at issue; (b) the operation
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of Amazon s Kindle business, including the process used by Amazon to obtain books for

sale to Kindle customers; (c) Amazon s contacts with Sinclair regarding the book and the
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Product Description; (d) third party contacts with Amazon regarding the book and its

publication; (e) the creation and development of the product descriptions and other
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promotional materials for the Sinclair book. Oparil Decl., ¶ 28; Parisi Resp. at 12, 14-

15, 19, 20-21.

Courts may deny a motion for summary judgment or order a continuance to

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permit discovery if the party opposing the motion adequately explains (1) why, at that

publicity claim. The rest of the cases cited by Plaintiffs did not involve the application of
CDA immunity to a right of publicity claim. The other cases cited by Plaintiffs either did
not involve the CDA or addressed the application of the CDA to other forms of
intellectual property rights (Atlantic Recording Corp. v. Project Playlist, Inc., 603 F.
Supp. 2d 690 (S.D.N.Y. 2009)).

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 Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 23 of 26

timepoint, it cannot present by affidavit facts needed to defeat the motion, 11 and (2) the

facts to be discovered would create a triable issue. Scarborough v. Harvey, 493 F.

Supp. 2d 1, 12 (D.D.C. 2007) (internal quotations and citations omitted). Plaintiffs

motion should be denied here because discovery on the identified topics is not essential

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to justify its opposition (Fed. R. Civ. P. 56(f)), and will not create a triable issue on

Amazon.com s legal entitlement to CDA immunity. Scarborough, 493 F. Supp. 2d at 12.

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The bulk of Plaintiffs request for discovery stems from their contention that

Amazon.com can be held liable under common law notice-based distributor liability if it

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had notice of the Sinclair book s defamatory content. Parisi Resp. at 12, 14-15. As

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explained in Section I.C., supra, facts related to notice are completely irrelevant to CDA

immunity, and therefore not material to Plaintiffs opposition (Fed. R. Civ. P. 56(f)) to
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Amazon.com s motion for summary judgment based on CDA immunity.

With respect to the need for discovery on Amazon.com s Kindle business,

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Plaintiffs contend that they cannot discern whether the Kindle content is information

provided through the Internet or any other interactive computer service (47 U.S.C. §
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230(f)(3)). Parisi Resp. at 19. Amazon.com provided clear, unrefuted evidence that the

Kindle version of the book is provided to customers through the Internet or any other

interactive computer service. SMF, ¶ 8. In fact, Plaintiffs own Exhibit 10,

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Amazon.com s Digital Publication Distribution Agreement, confirms these facts. Oparil

11It should be noted that Plaintiffs have not organized a Local Rule 16 or Federal Rule of
Civil Procedure 26(f) conference to address their discovery needs and made no effort to
do so even after receiving a prompt from counsel for Defendant Barnes & Noble. See
Declaration of Matthew J. Segal in Support of Amazon.com s Reply, Ex. A (email from
Linda Steinman, counsel for Defendant Barnes & Noble, reminding Plaintiffs counsel of
conference responsibilities).

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 Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 24 of 26

Decl., Ex. 10. Plaintiffs offer no contrary evidence even suggesting any material

disputed facts.

Finally, Plaintiffs argue they need discovery on how the Product Description

Promotional Content was created for the Sinclair book. Parisi Resp. at 20-21. As

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explained in Section I.A., supra, the undisputed record shows that Amazon.com s

website contained the Promotional Content just as it was received from Lightning.

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Again, there is no showing that discovery could create an issue of material fact on this

point.

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Plaintiffs Rule 56(f) request for discovery should be denied and summary

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judgment granted to Amazon.com on all of Plaintiffs claims.

II. CONCLUSION
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Congress afforded interactive computer services like Amazon.com broad

immunity to encourage the dissemination of speech protected by the First Amendment.

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The statute is designed to preserve the vibrant and competitive free market that presently

exists for the Internet 47 U.S.C. § 230(b)(2). Plaintiffs would have this court destroy
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that immunity by manufacturing a series of exceptions found nowhere in the CDA.

Neither Amazon.com nor numerous other interactive computer services could function in

the world constructed by Plaintiffs, where notwithstanding Congress clear direction in

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the CDA, those services could be held liable for books written by others and sold through

their sites, and an attorney s letter alleging defamation could lawfully operate as a prior

restraint on commentary and book distribution.

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 Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 25 of 26

For all of the foregoing reasons, Amazon.com respectfully requests that the Court

grant its motion and dismiss Plaintiffs Complaint as to Amazon.com with prejudice.

Respectfully submitted,

et
_/s/___________________

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John Longstreth, # 367047
Jenée Desmond-Harris, # 982624
K&L GATES, LLP
1601 K St. NW

or
Washington, DC 20006-1600
Ph: 202.661.6271
Fax: 202.778.9100
at Stephen A. Smith
Mathew J. Segal
Kari L. Vander Stoep
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K&L GATES, LLP
925 Fourth Avenue, Suite 2900
Seattle, Washington 98104-1158
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Ph: 206.370.7800
Fax: 206.370.6177

Attorneys for Defendant,

November 1, 2010 AMAZON.COM, INC.
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 Case 1:10-cv-00897-RJL Document 72 Filed 11/01/10 Page 26 of 26

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Defendant

Amazon.com, Inc. s Reply in Support of Motion for Summary Judgment was served this

1st day of November, 2010 via the Court s Electronic Case Filing ( ECF ) system. I

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understand that notice of this filing will be sent to all parties by operation of the Court s

ECF system.

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or
_/s/_______________________
John Longstreth

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 Case 1:10-cv-00897-RJL Document 72-1 Filed 11/01/10 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
DANIEL PARISI, )
WHITEHOUSE.COM INC., )
WHITEHOUSE NETWORK LLC, )
WHITE HOUSE COMMUNICATIONS INC., ) Civil Action

et
) No. 1:10-cv-00897-RJL
)
Plaintiffs )

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v. )
)
JEFFREY RENSE, )
LAWRENCE W. SINCLAIR a/k/a “Larry Sinclair,” )

or
BARNES & NOBLE, INC., )
BARNESANDNOBLE.COM LLC, )
AMAZON.COM, INC., )
BOOKS-A-MILLION, INC., and at )
SINCLAIR PUBLISHING, INC., )
)
Defendants. )
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)

DECLARATION OF MATTHEW J. SEGAL

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IN SUPPORT OF DEFENDANT AMAZON.COM, INC.’S

REPLY IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

1. I, Matthew J. Segal, declare under penalty of perjury that the following is

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true and correct.

2. I have personal knowledge of the facts herein and if called upon to do so

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could testify competently thereto.

3. I am a partner at the law firm K&L Gates, LLP, in Seattle, Washington.

4. Attached as Exhibit A is a true and complete copy of an email I received

on October 22, 2010, from Linda Steinman, counsel for Defendant Barnes & Noble, Inc.,

-1- K&L Gates LLP

1601 K Street
Washington, DC 20006-1600
 Case 1:10-cv-00897-RJL Document 72-1 Filed 11/01/10 Page 2 of 4

and barnesandnoble.com, LLC, addressed to Richard Oparil, counsel for Plaintiffs, and

copied to me and counsel for the other defendants.

I declare under penalty of perjury under the laws of the United States of America

that the foregoing statements are true and accurate.

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DATED: November 1, 2010

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___/s/_____________________
Matthew J. Segal

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at
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-2-
K&L Gates LLP
1601 K Street
Washington, DC 20006-1600
 Case 1:10-cv-00897-RJL Document 72-1 Filed 11/01/10 Page 3 of 4

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Exhibit A
Parisi v. Sinclair Page 1 of 1
Case 1:10-cv-00897-RJL Document 72-1 Filed 11/01/10 Page 4 of 4

Vander Stoep, Kari L.

From: Segal, Matthew

Sent: Friday, October 22, 2010 8:39 AM
To: Vander Stoep, Kari L.; Smith, Steve
Subject: FW: Parisi v. Sinclair

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fyi re: 26(f) conference.

From: Steinman, Linda [mailto:lindasteinman@dwt.com]

Sent: Friday, October 22, 2010 8:36 AM

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To: Oparil, Richard
Cc: Segal, Matthew; scott.sifton@huschblackwell.com; Summerscales, Joanna; Eastburg, Rory
Subject: Parisi v. Sinclair

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Richard: I've spoken to Matt Segal and Scott Sifton, and we think it makes sense that any
"meet and confer" session take place between you and the three bookseller defendants on one
conference call. I'll leave it up to you to initiate such a session. Linda

Linda Steinman | Davis Wright Tremaine LLP

1633 Broadway, 27th FL | New York, NY 10019
Tel: (212) 603-6409 | Fax: (212) 489-8340
at
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Email: lindasteinman@dwt.com | Website: www.dwt.com

Anchorage | Bellevue | Los Angeles | New York | Portland | San Francisco | Seattle | Shanghai | Washington, D.C.
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11/1/2010
 Case 1:10-cv-00897-RJL Document 72-2 Filed 11/01/10 Page 1 of 2

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 Case 1:10-cv-00897-RJL Document 72-2 Filed 11/01/10 Page 2 of 2

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