Via Law360

By: Joyce Hanson

Mason Kortz, Clinical Instructor, Cyberlaw Clinic

Harvard Law School’s Cyberlaw Clinic has urged the Ninth Circuit not to touch a lower court decision ending a corporate landlord’s lawsuit accusing Airbnb of helping tenants break building rules and host rowdy guests, saying that a revival of the suit could undermine Communications Decency Act protections of internet startups.

The law clinic’s friend of the court brief, filed Thursday and written on behalf of nonprofit technology policy group Engine Advocacy and Santa Clara University School of Law professor Eric Goldman, opposes a bid by Apartment Investment and Management Co. to revive the suit based on Aimco’s argument that the Central District of California was wrong to conclude that Airbnb Inc.’s home-sharing website was immune from the suit under Section 230 of the Communications Decency Act of 1996.

Aimco wants to hold Airbnb liable by advancing two theories that threaten Section 230’s protections, but Ninth Circuit jurisprudence doesn’t support either argument, according to the brief written by Mason A. Kortz, a clinical instructor at the Harvard Law School Cyberlaw Clinic.

First, Aimco says Airbnb is liable for providing “brokerage services” — facilitating payments, taking and holding reservations and performing other rental services — a theory that runs contrary to the court’s interpretation of Section 230, which holds that Airbnb’s brokerage services are inseparable from its core service of publishing third-party content, Kortz wrote.

Secondly, he asserted, Aimco wrongly argues that Airbnb has illegally developed content for users who make unlawful offers on the internet. Airbnb’s content-generation, search and anonymization tools can be used lawfully or unlawfully, and the site is not liable as a content developer under Section 230, according to Kortz.

“Aimco’s narrow reading of Section 230 is not only legally unsound, it also has negative consequences from a policy perspective: it would result in less competition and less innovation online, which will be detrimental not only to platform operators, but also to internet users,” Kortz wrote. “Allowing plaintiffs to plead around Section 230 would create legal uncertainty, increase exposure to liability, and remove an important tool for early dismissal of meritless cases.”

Kortz told Law360 on Friday that he wrote the brief because he believes Aimco’s legal arguments threaten to undermine the protections that Section 230 affords small and vulnerable startups.

“Larger companies have the resources to police content on their websites as well as fight legal battles like the one Airbnb is fighting now,” Kortz said. “But smaller companies and early stage startups don’t have those resources. It’s possible that the plaintiff’s interpretation of Section 230 is a very narrow reading of those protections, and the arguments they make vis-a-vis Airbnb could provide a road map for holding any number of online services liable.”

Read the full article here.