Marshall's Locksmith Serv. Inc. v. Google, LLC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2018 Decided June 7, 2019
No. 18-7018
MARSHALL’S LOCKSMITH SERVICE INC., ET AL.,
APPELLANTS
v.
GOOGLE, LLC, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-02360)
Barry Roberts argued the cause and filed the briefs for
appellants.
Kathleen E. McCarthy argued the cause for appellees. With
her on the brief were Taylor T. Lankford, Amy W. Ray, Kelsi
Brown Corkran, Benjamin Aiken, Joseph R. Palmore, and Jeff
A. Jaeckel.
Before: GARLAND, Chief Judge, MILLETT, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: Fourteen locksmith companies
allege that Google, Microsoft, and Yahoo! have conspired to
“flood the market” of online search results with information
about so-called “scam” locksmiths, in order to extract additional
advertising revenue. Am. Compl. ¶ 36. According to the
amended complaint, the defendants further this scheme by
publishing the content of scam locksmiths’ websites, translating
street-address and area-code information on those websites into
map pinpoints, and allegedly publishing the defendants’ own
original content. The district court dismissed the amended
complaint as barred by the Communications Decency Act,
which states that “[n]o provider or user of an interactive
computer service shall be treated as the publisher or speaker of
any information provided by another information content
provider.” 47 U.S.C. § 230(c)(1). We affirm.
I
“This case arises from a motion to dismiss, and so we
accept as true the factual allegations in the [plaintiffs’] amended
complaint.” Hemi Grp., LLC v. City of New York, 559 U.S. 1,
5 (2010). The plaintiffs operate businesses that provide
legitimate locksmith services.1 They face competition from
“scam” locksmiths who misrepresent their businesses in terms
of “services offered, pricing, expertise, training, who is behind
the website, their location, contact information, and whether
1
The plaintiffs refer to themselves as “legitimate” locksmiths.
Although they do not define the term, they appear to mean businesses
that are resident, and registered and/or licensed, in the jurisdictions in
which they advertise and operate. See, e.g., Am. Compl. ¶¶ 36-38;
Locksmiths’ Reply Br. 9.
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they are licensed or registered to do business.” Am. Compl.
¶ 57.
According to the plaintiffs, the internet allows scam
locksmiths to amplify their influence. Consumers typically call
locksmiths when they are locked out of their homes or cars. In
emergencies of this kind, consumers prioritize identifying the
locksmith closest to where they are located. Today, the
“primary means” that an inquiring consumer uses to find a
nearby locksmith is “[l]ocation-based internet search.” Id. ¶ 54.
Both the importance of proximity and the internet’s
potential to create the facade of proximity are not lost on scam
locksmiths. These companies actively cultivate online presences
that give the appearance of locality. Scam locksmiths “publish
hundreds or thousands of unique websites targeting nearly every
heavily populated geographic location all around the country.”
Id. ¶ 57. These pages “display either a fictitious or no address,
and include false claims that [scam locksmiths] are local
businesses.” Id. ¶ 58. Moreover, scam locksmiths use call
centers to generate “local-area phone number[s],” when in
reality they may be located far away from the querying
consumer. Id. ¶ 59. All of these efforts are designed to take
advantage of the structure of the defendants’ search engines. By
so doing, the scam locksmiths have “tricked Google into
displaying [scam locksmiths] as physical stores in [the
consumers’] neighborhoods, when in reality, they’re ghosts.”
Id. ¶ 61B (internal quotation marks omitted).
Legitimate locksmith businesses have suffered significant
economic losses due to competition from scam locksmiths. Id.
¶¶ 42-43. Yet the plaintiffs focus their blame not on the scam
locksmiths themselves, but rather on the search engines that
Google, Microsoft, and Yahoo! operate. Collectively, these
companies control approximately 90% of the online search
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market. Id. ¶ 33. According to the plaintiffs, the defendants use
their market power with respect to online search to extract
payments from legitimate locksmith companies like themselves.
The defendants do this by “deliberately flood[ing] their own
organic and map results with locksmith listings they know are
seriously inaccurate or even nonexistent to induce both
legitimate and scam locksmiths to participate in paid
[advertised] results to overcome the false information.” Id. ¶ 66.
The amended complaint alleges that the defendants carry
out this scheme by publishing three kinds of content that boost
scam locksmith search results and generate advertising revenue.
(As discussed below, the plaintiffs also contend that these kinds
of content are unprotected by the Communications Decency
Act.) First, the defendants publish “[t]hird-party websites
created by scam locksmith[s] that Defendants know do not exist
at the addresses stated thereon.” Id. ¶ 63. Second, the
defendants publish “[e]nhanced content that was derived from
third-party content, but has been so augmented and altered as to
have become new content.” Id. ¶ 62. Finally, the defendants
publish “original content, created out of whole cloth.” Id.
Taken together, the defendants’ publication of these categories
of content has “severely restricted” consumers’ ability to
“discover and contact Plaintiffs and other legitimate
locksmiths.” Id. ¶ 37.
In January 2017, the plaintiffs filed their amended
complaint alleging eight violations of federal and state law. The
three federal counts allege that the defendants engage in false
advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B),
abuse their monopoly power under § 2 of the Sherman Act, 15
U.S.C. § 2, and conspire in restraint of trade under § 1 of the
Sherman Act, id. § 1. The five state-law counts allege common-
law fraud, tortious interference with economic advantage, unfair
competition, conspiracy, and breach of contract.
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The defendants moved to dismiss the amended complaint
on several grounds. As relevant here, they argued that they are
immune from suit under § 230 of the Communications Decency
Act, 47 U.S.C. § 230, which protects online intermediaries from
liability for third-party content posted on their websites.
The district court granted the motion to dismiss, holding
that all counts other than the breach-of-contract count should be
dismissed under § 230. Baldino’s Lock & Key Serv., Inc. v.
Google, LLC, 285 F. Supp. 3d 276, 278 (D.D.C. 2018). The
court reasoned that “it is the scam locksmiths who provide the
original location claim, and the [defendants] have created a
website that simply re-publishes that information along with
associated mapping information.” Id. at 283. Any “extra
information is wholly dependent on the original location claim.”
Id. The court dismissed the remaining breach-of-contract count
for failure to state a claim. Id. at 284.
The plaintiffs timely appealed the district court’s dismissal
of the seven counts that the court held are barred by the
Communications Decency Act. We review de novo the district
court’s grant of the motion to dismiss based on § 230. Bennett
v. Google, LLC, 882 F.3d 1163, 1165 (D.C. Cir. 2018).
II
Section 230 of the Communications Decency Act is the
statutory provision that controls this case. Section 230(c)(1)
states: “No provider or user of an interactive computer service
shall be treated as the publisher or speaker of any information
provided by another information content provider.” 47 U.S.C.
§ 230(c)(1). Section 230(f)(3) goes on to define an “information
content provider” as “any person or entity that is responsible, in
whole or in part, for the creation or development of information
provided through the Internet or any other interactive computer
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service.” Id. § 230(f)(3). As courts uniformly recognize, § 230
immunizes internet services for third-party content that they
publish, including false statements, against causes of action of
all kinds. See, e.g., Bennett, 882 F.3d at 1166; Klayman v.
Zuckerberg, 753 F.3d 1354, 1356 (D.C. Cir. 2014).2
Consistent with Congress’ intent to confer broad immunity
for the re-publication of third-party content, internet services
may invoke § 230 immunity as grounds for dismissal under
Federal Rule of Civil Procedure 12(b)(6). “Preemption under
the Communications Decency Act is an affirmative defense, but
it can still support a motion to dismiss if the statute’s barrier to
suit is evident from the face of the complaint.” Klayman, 753
F.3d at 1357; see Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
2
See also, e.g., FTC v. LeadClick Media, LLC, 838 F.3d 158, 173
(2d Cir. 2016); Jones v. Dirty World Entm’t Recordings, LLC, 755
F.3d 398, 406-07 (6th Cir. 2014); Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009); Doe v.
MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Universal Commc’n
Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418-19 (1st Cir. 2007); Almeida
v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006).
Section 230 effectively confers immunity against federal causes
of action where the claims involve treating the defendant as the
“publisher or speaker.” See Barnes v. Yahoo!, Inc., 570 F.3d 1096,
1100 n.4, 1102 (9th Cir. 2009), as amended (Sept. 28, 2009); Fair
Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521
F.3d 1157 (9th Cir. 2008) (en banc). It also contains a preemption
provision that expressly extends that immunity to “State or local law”
claims “inconsistent with this section,” 47 U.S.C. § 230(e)(3).
Although the Act contains some exceptions, see, e.g., id. § 230(e)(1)
(exempting enforcement of federal criminal laws), the plaintiffs
acknowledge that none of those exceptions applies to this case,
12/19/17 Hr’g Tr. 10 (J.A. 57); see Baldino’s Lock & Key Serv., 285
F. Supp. 3d at 283.
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Inc., 591 F.3d 250, 254 (4th Cir. 2009) (“Section 230 immunity,
like other forms of immunity, is generally accorded effect at the
first logical point in the litigation process.”).
To determine whether dismissal is appropriate, this circuit
has adopted a three-pronged test that tracks the text of
§ 230(c)(1):
The Communications Decency Act mandates dismissal
if (i) [the defendant] is a “provider or user of an
interactive computer service,” (ii) the information for
which [the plaintiff] seeks to hold [the defendant]
liable was “information provided by another
information content provider,” and (iii) the complaint
seeks to hold [the defendant] liable as the “publisher or
speaker” of that information.
Klayman, 753 F.3d at 1357 (quoting 47 U.S.C. § 230(c)(1));
accord Bennett, 882 F.3d at 1166.
In this case, the parties contest only the second prong. See
12/19/17 Hr’g Tr. 8 (J.A. 55). The defendants satisfy the first
prong because the Act broadly defines an “interactive computer
service” as “any information service, system, or access software
provider that provides or enables computer access by multiple
users to a computer server . . . .” 47 U.S.C. § 230(f)(2). Search
engines fall within this statutory definition. See, e.g., FTC v.
LeadClick Media, LLC, 838 F.3d 158, 174 (2d Cir. 2016). And
the defendants satisfy the third prong because the plaintiffs
acknowledge that they seek to hold the defendants liable in their
capacity as a “publisher or speaker” of the content at issue. See
12/19/17 Hr’g Tr. 8 (J.A. 55).3
3
For example, Count I, for monopolization, faults the defendants
for “listing large numbers of artificial listings in their organic results,”
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The sole question on appeal, therefore, is whether the
plaintiffs seek to hold the defendants liable for “information
provided by another information content provider,” as required
by the second prong. 47 U.S.C. § 230(c)(1). If not, then the suit
may proceed. If so, then all three prongs are satisfied, the
defendants are entitled to immunity, and the court properly
dismissed the plaintiffs’ lawsuit.
III
At the motion-to-dismiss stage, we examine the “face of the
complaint” to determine whether the plaintiffs seek to hold the
defendants liable for information provided by another
information content provider. Klayman, 753 F.3d at 1357. The
following analysis addresses the three categories of content that
the amended complaint alleges the defendants publish:
(1) “third-party websites created by scam locksmith[s] that
Defendants know do not exist at the addresses stated thereon,”
Am. Compl. ¶ 63; (2) “[e]nhanced content that was derived from
third-party content, but has been so augmented and altered as to
have become new content and not mere editorialization,” id.
¶ 62; and (3) “original content, created out of whole cloth,” id.
A
First, the plaintiffs allege that the defendants “publish third-
party websites created by scam locksmith[s] that Defendants
know do not exist at the addresses stated thereon.” Am. Compl.
¶ 63. This category of content published by the defendants --
Am. Compl. ¶ 132; Count II, for conspiracy in restraint of trade, faults
the defendants for “knowingly publishing fake listings,” id. ¶ 140; and
Count VII, for false advertising, alleges that the “published material
at issue . . . misrepresents the geographic origin” of the services in
question, id. ¶ 173 (internal quotation marks omitted).
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the posting of third-party content -- is plainly within the
immunity provided by § 230. Indeed, this claim is precisely the
kind that Congress passed § 230 to foreclose. See Bennett, 882
F.3d at 1166, 1168 (citing Zeran v. Am. Online, Inc., 129 F.3d
327, 331 (4th Cir. 1997)).
The plaintiffs do not seriously contest this conclusion.
Before the district court, plaintiffs’ counsel conceded that “we
don’t like the phony websites, but if they got it from somebody
else and simply republished it, the [Act] gives them immunity.”
12/19/17 Hr’g Tr. 7 (J.A. 54); see Recording of Oral Arg. at
7:27-7:54. Nonetheless, the plaintiffs’ amended complaint
repeatedly suggests that the defendants should be held liable for
publishing the content of scam-locksmith websites because they
are “on actual notice” that this content is fraudulent and yet have
failed to act. See, e.g., Am. Compl. ¶¶ 39, 84, 124-28. But it is
“well established that notice of the unlawful nature of the
information provided is not enough to make it the service
provider’s own speech.” Universal Commc’n Sys., Inc. v. Lycos,
Inc., 478 F.3d 413, 420 (1st Cir. 2007); see Bennett, 882 F.3d at
1166 (noting that § 230 immunity applies regardless of whether
the defendant acquired knowledge that the third-party content it
published was false (citing Zeran, 129 F.3d at 331)). Hence, the
amended complaint’s allegations regarding the re-publication of
content from the scam locksmiths’ websites cannot escape the
immunity that § 230 confers.
B
Next, the plaintiffs allege that the defendants create
“[e]nhanced content that was derived from third-party content,
but has been so augmented and altered as to have become new
content and not mere editorialization.” Am. Compl. ¶ 62. The
primary form of “enhanced” content to which the plaintiffs
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object is the defendants’ creation of map pinpoints that display
scam-locksmith locations.
The first question we must address is whether the
defendants’ translation of information that comes from the scam
locksmiths’ webpages -- in particular, exact street addresses --
into map pinpoints takes the defendants beyond the scope of
§ 230 immunity. In considering this question, it is helpful to
begin with the simple scenario in which a search engine receives
GPS data from a user’s device and converts that information into
a map pinpoint showing the user’s geographic location. The
decision to present this third-party data in a particular format --
a map -- does not constitute the “creation” or “development” of
information for purposes of § 230(f)(3). The underlying
information is entirely provided by the third party, and the
choice of presentation does not itself convert the search engine
into an information content provider. Indeed, were the display
of this kind of information not immunized, nothing would be:
every representation by a search engine of another party’s
information requires the translation of a digital transmission into
textual or pictorial form. Although the plaintiffs resisted this
conclusion in their briefs, see Locksmiths’ Reply Br. 3
(declaring that the “location of the inquiring consumer . . . is
determined entirely by the search engines”), they acknowledged
at oral argument that a search engine has immunity if all it does
is translate a user’s geolocation into map form, see Recording of
Oral Arg. at 12:07-12:10.
With this concession, it is difficult to draw any principled
distinction between that translation and the translation of exact
street addresses from scam-locksmith websites into map
pinpoints. At oral argument, the plaintiffs could offer no
distinction, and we see none. In both instances, data is collected
from a third party and re-presented in a different format. At
best, the plaintiffs suggested that a line could be drawn between
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the placement of “good” and “bad” locksmith information onto
the defendants’ maps. See id. at 12:43-12:58 (accepting that, “to
the extent that the search engine simply depicts the exact
information they obtained from the good locksmith and the
consumer on a map, that appears to be covered by the [Act]”).
But that line is untenable because, as discussed above, Congress
has immunized the re-publication of even false information.
The next question is whether the translation of somewhat
less-exact location descriptions is protected by the Act. This
requires somewhat more discussion. The plaintiffs describe a
situation in which the defendants create a map pinpoint based on
a scam locksmith’s website that says the locksmith “provides
service in the Washington, D.C. metropolitan area” and “lists a
phone number with a ‘202’ area code.” Locksmiths’ Br. 8; see
also Locksmiths’ Reply Br. 4-5. According to the plaintiffs, the
defendants’ search engines use this information to “arbitrarily”
assign a map location within the geographic scope indicated by
the third party. Locksmiths’ Br. 8.
We conclude that these translations are also protected.
First, as the plaintiffs do not dispute, the location of the map
pinpoint is derived from scam-locksmith information: its
location is constrained by the underlying third-party
information.4 In this sense, the defendants are publishing
4
See Am. Compl. ¶ 61B (“These businesses . . . have tricked
Google into displaying them as physical stores in their neighborhoods,
when in reality, they’re ghosts.”); id. ¶ 103 (“Defendants’ algorithms
organize their organic results by factoring in the geographic proximity
of each search result to the [querying] user, with the same
geographically restrictive result as an outright map search.”); id. ¶ 111
(“Defendants’ algorithms organize, rank, categorize, correlate, and
display results for organic, map, and paid results.”); see also
Recording of Oral Arg. at 14:30-14:55 (plaintiffs’ counsel) (“Let’s say
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“information provided by another information content provider.”
Cf. Kimzey v. Yelp!, Inc., 836 F.3d 1263, 1270 (9th Cir. 2016)
(holding that Yelp’s star rating system, which is based on
receiving customer service ratings from third parties and
“reduc[ing] this information into a single, aggregate metric” of
one to five stars could not be “anything other than user-
generated data”). It is true that the location algorithm is not
completely constrained, but that is merely a consequence of a
website design that portrays all search results pictorially, with
the maximum precision possible from third-party content of
varying precision. Cf. Carafano v. Metrosplash.com, Inc., 339
F.3d 1119, 1125 (9th Cir. 2003) (“Without standardized, easily
encoded answers, [Matchmaker.com] might not be able to offer
these services and certainly not to the same degree.”).5
Second, and also key, the defendants’ translation of third-
party information into map pinpoints does not convert them into
“information content providers” because defendants use a
the scammer represents that it provides service throughout the D.C.
metropolitan area. The search engine will arbitrarily put a pinpoint,
and often actually assign an arbitrary address, to the scammer
somewhere in the D.C. area.”); David Segal, Fake Online Locksmiths
May Be Out To Pick Your Pocket, Too, N.Y. TIMES (Jan. 30, 2016)
(referenced in Am. Compl. ¶ 61B) (explaining that scammers “game
Google’s algorithm” by inputting their misleading location
information into two Google “platforms: Google My Business . . . and
Map Maker”).
5
To be clear, we do not hold that § 230 protects all information
derived from third-party information. Because the defendants’ map
pinpoints hew to the third-party information from which they are
derived -- and because, as we discuss below, the pinpoints are derived
neutrally as well as algorithmically -- today we need not decide
precisely when an entity that derives information can be considered to
have “creat[ed] or develop[ed]” it. 47 U.S.C. § 230(f)(3).
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neutral algorithm to make that translation. We have previously
held that “a website does not create or develop content when it
merely provides a neutral means by which third parties can post
information of their own independent choosing online.”
Klayman, 753 F.3d at 1358; accord Bennett, 882 F.3d at 1167;
see Kimzey, 836 F.3d at 1270 (holding that Yelp’s “star-rating
system is best characterized as the kind of neutral tool[]
operating on voluntary inputs that . . . [does] not amount to
content development or creation” (internal quotation marks
omitted) (citing Klayman, 753 F.3d at 1358)). And the Sixth
Circuit has held that the “automated editorial act[s]” of search
engines are generally immunized under the Act. O’Kroley v.
Fastcase, Inc., 831 F.3d 352, 355 (6th Cir. 2016).
Here, the defendants use automated algorithms to convert
third-party indicia of location into pictorial form. See supra
note 4. Those algorithms are “neutral means” that do not
distinguish between legitimate and scam locksmiths in the
translation process. The plaintiffs’ amended complaint
effectively acknowledges that the defendants’ algorithms
operate in this fashion: it alleges that the words and numbers the
scam locksmiths use to give the appearance of locality have
“tricked Google” into placing the pinpoints in the geographic
regions that the scam locksmiths desire. Am. Compl. ¶ 61B. To
recognize that Google has been “tricked” is to acknowledge that
its algorithm neutrally translates both legitimate and scam
information in the same manner. Because the defendants
employ a “neutral means” and an “automated editorial act” to
convert third-party location and area-code information into map
pinpoints, those pinpoints come within the protection of § 230.6
6
The same is true of the streetscape photos and driving directions
about which the plaintiffs also complain. See Am. Compl. ¶¶ 94,
173E. These are a function of the map pinpoints that the defendants’
algorithms generate from the location information provided by the
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C
Finally, the plaintiffs allege that the defendants publish
“original content” devoid of any third-party origination at all.
Am. Compl. ¶ 62. We have addressed some of this allegedly
“original content” in the previous section. For example, the
amended complaint frequently alleges that the defendants create
“false” or “fictitious” addresses. See, e.g., id. ¶¶ 64, 174. But
those allegations refer to the map pinpoints that the search
engines generate in neutral fashion based on third-party
information like area codes, and we have already concluded that
the pinpoints are covered by § 230 immunity.
Elsewhere in the amended complaint, the plaintiffs allege
that the defendants go further. According to the plaintiffs, the
defendants “manually alter their own algorithmic results to
maximize profitability,” untethered from either the information
the locksmiths provide or the algorithms the defendants employ.
Id. ¶ 116. But the plaintiffs do not discuss this allegation in their
appellate briefs, and they have therefore forfeited it. Williams
v. Romarm, SA, 756 F.3d 777, 783 (D.C. Cir. 2014); see FED. R.
APP. P. 28(a)(8)(A).
Finally, the plaintiffs maintain that the defendants’
algorithms place the same scam locksmith’s map pinpoint in
different locations, depending upon a consumer’s location, in
order to make that locksmith appear to be nearby. This
allegation has the mirror-image problem of the allegation just
discussed: it is made in the plaintiffs’ briefs, see, e.g.,
Locksmiths’ Br. 18; Locksmiths’ Reply Br. 5, but is not made
in their amended complaint. It is therefore not relevant in
reviewing the validity of the district court’s dismissal of that
locksmiths’ websites. See Baldino’s Lock & Key Serv., 285 F. Supp.
3d at 281.
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complaint. See Hurd v. District of Columbia, 864 F.3d 671, 678
(D.C. Cir. 2017) (“In determining whether a complaint fails to
state a claim, [the court] may consider only the facts alleged in
the complaint, any documents either attached to or incorporated
in the complaint and matters of which [the court] may take
judicial notice.” (internal quotation marks omitted)).
IV
We close by noting that, although we find § 230 immunity
warranted in this case, that immunity is not limitless. In this
vein, we reject the defendants’ remarkable suggestion at oral
argument that they would enjoy immunity even if they did in
fact entirely fabricate locksmith addresses. See Recording of
Oral Arg. at 37:27-38:20. That assertion is plainly inconsistent
with the scope of the immunity that Congress has conferred. If
the defendants were to fabricate addresses, those addresses
would not be “information provided by another information
content provider.” 47 U.S.C. § 230(c)(1). And the defendants
would not be entitled to immunity.
For the foregoing reasons, the district court’s dismissal of
the complaint as barred by § 230 of the Communications
Decency Act is
Affirmed.