Court-Side Seats? The Communications Decency Act and the Potential Threat to Stubhub and Peer-to-Peer Marketplaces

In 1996, Congress passed section 230 of the Communications Decency Act, which provides broad immunity to websites from vicarious liability for the content produced by its users. Despite this broad immunity, a website will be liable for its user’s content when it is deemed to be an “information content provider” itself. In 2008, in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, the Ninth Circuit Court of Appeals held that a website is an information content provider and thus loses immunity when it “materially contributes to the alleged unlawfulness” of the content. Although most courts have followed this “material contribution test,” the test has lead to diverging opinions as to immunity for peer-to-peer marketplace websites, such as StubHub. This Note proposes a new test in line with Congress’s intent to provide broad immunity under section 230 of the Communications Decency Act.