Google maps.
Can an online map provider like Google be held liable for siphoning business from mom-and-pop outlets when plotting approximate locations for competitors that don't list their addresses online?
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, including Chief Judge Merrick Garland, grappled with that question Friday. The case was brought by a group of locksmiths attempting to hold the companies behind Google, Yahoo, and Bing Maps liable for plotting sham locksmith operations on their mobile mapping applications.
The plaintiffs claim that when consumers search for locksmiths online, the internet services pinpoint unlicensed locksmiths close to consumers. Google, Microsoft and the company formerly known as Yahoo persuaded a district judge in the District of Columbia earlier this year to toss the locksmiths' case, arguing that Section 230 of the Communications Decency Act immunizes internet companies from liability for publishing information created by third parties on their websites.
But during Friday's argument, Garland asked the companies' lawyer, Kathleen McCarthy of King & Spalding, to accept the hypothetical that the internet companies received only a phone number before plotting out an actual street address.
"Is that the creation and development of information" that can fall outside the publishing activity protected by Section 230? he asked.
McCarthy said that it was not, and when prodded by the chief judge added that the statute allows internet companies to set up their applications in ways that create "useful products." She also contended that plaintiffs could not show that the companies had "materially contributed" to the allegedly fraudulent, unlicensed locksmith services that the plaintiffs contend benefit from appearing on the mapping applications.
Garland, however, noted that McCarthy was asking the panel to adopt a "materially contributes" test that's been accepted by other circuits, but not yet by the D.C. Circuit.
Garland's colleague, Judge Harry Edwards, further questioned McCarthy on whether the case was proper for dismissal at the pleadings stage. The plaintiffs had alleged that the defendants were simply making up address information rather than deriving it from elsewhere.
"On a motion to dismiss can a judge say, 'Nah, that sounds implausible to me?' " Edwards asked.
The plaintiffs' lawyer, Barry Roberts of Roberts Attorneys, P.A., was likewise met with pointed questions from the panel, particularly about how far internet companies should go to police the content of their sites and the lack of specificity within complaint.
Judge Patricia Millett, the third member of the panel, asked Roberts how much research the defendants should be required to do about all the of the locksmiths listed within their search results. "How are they supposed to know in Washington, D.C. who is a scammer and who is not?" she asked.
Roberts said the defendants had gotten "a lot of complaints" about the sham services.
"They get a lot of complaints about a lot of things," Millett replied.
Garland later took issue with wording in the complaint where the plaintiffs noted that the locksmith scammers had "tricked" Google and the other companies.
"There must be something in the scam locksmith's website that is tricking" the defendants, said Garland. "What is it about the website that’s tricking them?"
Sensing that if the companies had been tricked it would be hard to hold them liable, Roberts retreated.
"We may have used the wrong word," he said.
Google LLC is represented in the case by King & Spalding, Microsoft Corp. by Orrick, Herrington & Sutcliffe, and Oath Holdings Inc., formerly known as Yahoo, is represented by Morrison & Foerster.
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