Over the years, we've written about the Section 230 safe harbors -- which protect service providers from being liable for certain actions of their users -- a number of times. This is perfectly common sense legislation: the blame should be placed on the person who actually committed the action, rather than the tools they used. Yet, for some reason, some still have trouble understanding this. A frequent target of those misunderstandings has been online ticket reseller Stubhub. A few years back we wrote about a ruling in a case in Illinois where the court effectively ignored Section 230. Apparently there was a similar move by a state court in North Carolina some time ago, but thankfully, the appeals court has reversed it, and once again made clear that you don't blame Stubhub for illegal actions performed by its users.

A couple years ago, we pointed out what appeared to be a pure money grab by the city of Chicago, demanding that Stubhub pay an extra tax (called an "amusement fee") on sales made by sellers and buyers in that city. As we noted, the original ticket buyer already paid a tax, and resellers themselves should be responsible for paying any additional tax. The district court dismissed the complaint from the city, noting that Section 230 protected it from being liable for actions of users.

However, the appeals court does not agree. While it did not issue a complete ruling -- instead asking the Illinois state supreme court to weigh in on the subject first -- it does (very, very quickly) dismiss the Section 230 safe harbor claim (and instead focuses on other possible defenses). The key part on Section 230:

[Section 230] limits who may be called the publisher of information that appears online. That might matter to liability for defamation, obscenity, or copyright infringement. But Chicago's amusement tax does not depend on who "publishes" any information or is a "speaker". Section 230(c) is irrelevant.

Leaving aside the fact that Section 230 specifically exempts intellectual property law (making it odd to suggest it matters for copyright infringement), this seems like a pretty narrow view of Section 230. The point of Section 230 is to make sure any liability is properly placed on the parties taking action. Saying that it is limited solely to "speaking," ignores the overall point of Section 230. Instead, the court seems to suggest it's entirely reasonable to put third party liability on a company -- especially in cases like Stubhub where it has a specific purpose (such as selling tickets, rather than as a general classifieds site). This seems like an unfortunate and unnecessary limitation on Section 230.

Online ticket reseller StubHub says that sales revenues and volume were up significantly in the first quarter, as secondary ticket prices fell and lured in more buyers. The head of the company says he wishes he could have some control over the prices and keep them down so the volume (which drives StubHub's revenues) stays high, but the company really has no way to control that, since each individual seller that uses its platform will try to push the price as high as they can. In any case, Stubhub's booming business helps explain why Ticketmaster is trying to grow its own resale business, grabbing a cut from the original sale, and then the resale too. On a related note, the StubHub CEO says he's not concerned about Ticketmaster's increasing use of paperless tickets as a means to thwart scalpers: "There are ways that brokers can provide these tickets. They're not elegant. They don't provide a great experience to the fan... Where there's a will there’s a way, and there are both interested sellers and interested buyers." Inevitably, resellers will find a way around the system -- but somehow, as long as Ticketmaster finds a new revenue stream coming from it, it's hard to imagine the company will mind too much.

We've talked in the past about the importance of various "safe harbor" rules that help maintain that liability for any sort of lawbreaking is actually placed on the lawbreaker, rather than any tool provider/middleman used to break the law. In an ideal world, we wouldn't need such safe harbors, because it should be obvious: the person who breaks the law is guilty, while the person who makes tools that are used to break the law is not guilty. That's just common sense... but apparently not common enough. We were already quite troubled by the Supreme Court's surprising and disturbing decision to create a new "inducement" standard that chips away at the DMCA's safe harbors, but no such "inducement" standard has been applied to Section 230's safe harbors, which protects service providers from most non-copyright law-breaking by users.

Until now, that is.

Eric Goldman points out that in a recent ruling in a lawsuit between the New England Patriots and Stubhub, it appears that a court has suddenly come up with an "inducement" standard for section 230 as well, despite most other court rulings (with one major exception) giving pretty broad protections to any service provider. In this case, which we've discussed before, the New England Patriots were furious that season ticket holders might resell some of their tickets on StubHub, and even had a court force StubHub to hand over the names of its users (despite this being a massive privacy violation that also violates StubHub's own terms of service). While an earlier ruling indicated StubHub was protected by the section 230 safe harbors, this latest ruling says it's not, in part because StubHub knows about, helps and profits from ticket scalping on the site.

This is troubling for a variety of reasons. It still involves putting liability on a party who doesn't actually break the law. Furthermore, when using a standard that involves looking at whether or not the company profits from the law breaking, you effectively kill all safe harbors. Any commercial service provider, almost by default, will profit in some way from the law breaking, but that shouldn't make them liable for it. Also, as we've see quite clearly with the inducement standard encroaching on DMCA safe harbors, those on the other side of lawsuits will continue to try to stretch and twist the contours of what counts as "inducement." If this stands, it will create massive potential liabilities for online service providers, and there will be lots of expensive lawsuits. The end result will be a greatly chilled market for innovation.

We've seen a few different lawsuits involving ticket reselling website Stubhub (owned by eBay). Last year, you may remember, a court forced Stubhub to hand over the identity of sellers of New England Patriots' tickets, despite the fact that Stubhub's terms of service protect users' privacy. One of the big questions brought up by various lawsuits is whether or not Stubhub is guilty of violating various anti-scalping laws. It seems like it would be clear that Stubhub, as the platform provider, is not liable and is protected by Section 230 of the CDA. And, in fact, that's what a court has just found, dismissing a complaint against Stubhub. However, as Eric Goldman notes at that link, this seems to contradict with at least one other ruling against Stubhub -- meaning that this is hardly settled law, and we should expect to see a bunch more lawsuits along these lines pop up before this gets worked out.

eBay subsidiary StubHub seems like a pretty straightforward concept: it's a marketplace for event ticket resales. It's a huge market, and it makes sense to have a platform for people to resell tickets they've legally bought. However, StubHub seems to keep getting attacked and finding itself in court. First there was Ticketmaster, which complained that StubHub was violating Ticketmaster's "exclusive" rights to selling tickets to certain venues. Then there was the New England Patriots who demanded the names of whoever sold tickets through StubHub in order to punish the ticketholders. Now, the city of Chicago is suing eBay and StubHub, claiming that it needs to collect a special city "amusement tax" on each ticket sold. This is a pure money grab. The original ticket buyer already paid that tax -- and even if you accept the idea that resales should also be taxed (which is pretty questionable), then it seems like something that the actual seller should be responsible for, rather than StubHub/eBay itself. But, don't tell that to Chicago politicians who see this as an easy way to hit up a big company for millions of dollars. If this sounds similar to the attempts to suddenly get Amazon to pay up in other states, that's because it is. Seems like local governments are looking for any way to squeeze companies for extra tax dollars, no matter how little sense it actually makes.

We've heard plenty of stories about organizations trying to ban the resale of tickets to events. It seems a bit silly to tell someone who bought a ticket to a concert or a sporting event that they're not allowed to resell it, but apparently some event organizers feel differently -- especially when the tickets are sold at greater than face value. The New England Patriots apparently are so adamant that people shouldn't be reselling their tickets for profit that they've convinced a court to force ticket resale marketplace StubHub to hand over the names of everyone who resold Patriots tickets for above face value. This seems like a rather large privacy violation -- and it clearly violates Stubhub's own terms of service (which is why the company fought it in court). You could understand being forced to turn over such information in a criminal lawsuit, but this is the New England Patriots requesting and getting the private info of sellers. For a team that just got into some trouble for spying on opposing teams, spying on their fans' private transactions doesn't seem like a step forward.