Third Circuit Declines to Rehear Pro-IP Rights Decision Regarding Section 230

On November 17, the U.S. Court of Appeals for the Third Circuit denied a petition for rehearing en banc of the Circuit panel decision in Hepp v. Facebook. In its decision from September 23 of this year, the Third Circuit concluded that the legal immunity conferred on "interactive computer services" by Section 230(c) of the Communications Decency Act does not apply to claims based on state intellectual property laws. Section 230(e)(2) is title "No Effect on Intellectual Property Law" and it states that "[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property."

The Third Circuit's decision in Hepp v. Facebook was the subject of my Perspectives from FSF Scholars titled "Court Rejects Section 230 Immunity from State Intellectual Property Law." As pointed out in that Perspectives, the Third Circuit's decision creates a clear circuit split with the Ninth Circuit on the issue of whether Section 230(e)(2) provides an exclusion from immunity for state intellectual property claims. The Third Circuit's decision is solidly grounded in the natural reading of the statutory text, it respects the role of IP rights in flourishing markets, and it deserves to stand. The denial of a rehearing en banc is good thing. It remains to be seen if Facebook, Reddit, or Imgur will appeal the decision to the U.S. Supreme Court.