[00:00:10] Speaker 03:
for the appellants, Ms.

[00:00:11] Speaker 03:
McCarthy for the accolades.

[00:01:15] Speaker 01:
May it please the Court, my name is Barry Roberts and I represent the appellant locksmiths in this action.

[00:01:23] Speaker 01:
This is an appeal from a dismissal of plaintiff's complaint under Rule 12b-6 of the Federal Rules of Civil Procedure.

[00:01:33] Speaker 01:
The dismissal was based on a finding that the action is precluded by Section 230 of the Communications Decency Act.

[00:01:43] Speaker 01:
The A-leading case in this circuit on the Communications Decency Act is Klayman v. Zuckerberg, which was cited both by the district court and by the defendant appellees.

[00:01:59] Speaker 01:
In that case, the court affirmed the dismissal of a complaint under Rule 12b-6 based on the Communications Decency Act, holding that the CDA is an affirmative defense

[00:02:13] Speaker 01:
And it must be shown that the barrier to sue, quote, must be evident in the face of the complaint.

[00:02:23] Speaker 01:
In that case, in the Zuckerberg case, the court specifically found that nowhere in the complaint was there even a suggestion that the information published came from Facebook.

[00:02:40] Speaker 01:
Our complaint is very different.

[00:02:42] Speaker 01:
We have specifically alleged that the search engines publish information that they create and develop, which are the terms used by the statute.

[00:03:00] Speaker 01:
When a consumer, locked out of his or her home, picks up their cell phone and looks for a locksmith,

[00:03:10] Speaker 01:
The search engines determine exactly where that consumer is located.

[00:03:15] Speaker 01:
And they publish maps.

[00:03:18] Speaker 01:
Maps will show what we refer to as the scammer locksmiths with pinpoints showing a purported location.

[00:03:26] Speaker 01:
I say purported because in many cases they're made up.

[00:03:31] Speaker 01:
and a purported address, which in many cases are made up.

[00:03:35] Speaker 04:
Moreover... I'm trying to just clarify one thing on what you say is made up.

[00:03:41] Speaker 04:
It sounds like your allegation is that the business might be made up, but surely the actual locksmith is local because they show up to let somebody into their car or deal with these things.

[00:03:53] Speaker 04:
Is there any question that the locksmiths themselves individually are local?

[00:03:57] Speaker 01:
The way these scammer operations work is you have no idea where the phone is being answered.

[00:04:04] Speaker 01:
It may be a 202 number, but it can be answered anywhere in the world.

[00:04:09] Speaker 01:
They will dispatch somebody from their home who is unqualified, unlicensed, and will essentially cheat the consumer.

[00:04:20] Speaker 01:
It's for this reason that many states have licensed it.

[00:04:22] Speaker 04:
That locksmith has got to be local, right?

[00:04:25] Speaker 01:
They will dispatch somebody who is local.

[00:04:29] Speaker 01:
Yes.

[00:04:30] Speaker 01:
We have no idea where he or she is coming from, because typically they will show up in an unmarked vehicle, provide no identification.

[00:04:40] Speaker 01:
But yes, what these maps purport to show are two things.

[00:04:48] Speaker 01:
One, where the scammer is located.

[00:04:51] Speaker 01:
And the pinpoint location for the scammer is something that is typically arbitrarily assigned by the search engine.

[00:05:00] Speaker 01:
And in many cases, it will not only put a pinpoint on the map, it will include an address.

[00:05:08] Speaker 01:
And often when you look at the addresses, there'll be pizza parlors or public parks or a PNC bank on Pennsylvania Avenue.

[00:05:15] Speaker 01:
In addition, you will often see a second pinpoint showing the location of the consumer, the inquiring consumer.

[00:05:25] Speaker 01:
The idea of the map is to show the nearness, the geographic proximity of these locksmiths to the consumer.

[00:05:34] Speaker 02:
Is the pinpoint of the consumer generated by the GPS of the telephone?

[00:05:40] Speaker 01:
Yes.

[00:05:40] Speaker 01:
The search engines essentially get it as a result of the GPS included in the telephone.

[00:05:45] Speaker 01:
So they will know when I phone for a locksmith, they'll know exactly where I am.

[00:05:50] Speaker 01:
And they will generate maps.

[00:05:52] Speaker 02:
Are you alleging that the

[00:05:54] Speaker 02:
representation in map form of the GPS location of the consumer, if that were all there were in the case, would that be protected by the CDA?

[00:06:06] Speaker 02:
If all that were at issue were the representation of where the consumer is on the map, would that be protected by the CDA?

[00:06:16] Speaker 01:
No, because if all they did was represent where the consumer is located, the consumer's location is information that the search engine itself develops as a result of the GPS coordinates that it receives.

[00:06:34] Speaker 02:
So your allegation is that even without the fraud of the locksmiths, even without the false information about their location,

[00:06:44] Speaker 02:
Any time somebody uses Google Maps with their telephone and Google Maps translates that into a map representation, that's not protected.

[00:06:58] Speaker 02:
That's developed by Google.

[00:07:00] Speaker 02:
Is that right?

[00:07:01] Speaker 01:
If Google or Yahoo or Bing publish a location, a map showing a location of a consumer, and it is the search engine that determines the consumer's location,

[00:07:16] Speaker 01:
That's information that is determined by the search engine.

[00:07:21] Speaker 02:
What's an example of something that's not developed by the search engine?

[00:07:27] Speaker 01:
When, for example, a search engine scrapes the internet,

[00:07:32] Speaker 01:
And they will find a website or a listing for phony locksmith, which you'll typically see.

[00:07:38] Speaker 01:
It will say locksmith serving the Washington metropolitan area, call 202, so and so.

[00:07:44] Speaker 01:
And they republish exactly what they found without change.

[00:07:51] Speaker 01:
They've got a good case that they're covered under the CDA.

[00:07:55] Speaker 02:
What about the map location of the Good Locksmith?

[00:07:58] Speaker 02:
That's also not protected.

[00:08:00] Speaker 01:
The map location, if the locksmith's information says area 703, serving the Washington metropolitan area.

[00:08:11] Speaker 02:
Now, let's say the Good Locksmith, your client, your client, the Good Locksmith,

[00:08:17] Speaker 02:
puts their exact address, the correct, honest address on their own website, and Google converts that into a map pinpoint.

[00:08:27] Speaker 02:
Is that cover protected by the CDA or not?

[00:08:30] Speaker 01:
Yes, if a good locksmith in their website has its true address and Google merely puts that information on a map, the map is based on information obtained from somebody else.

[00:08:46] Speaker 01:
So that's OK.

[00:08:47] Speaker 01:
That's OK.

[00:08:47] Speaker 02:
OK, so then just, we're only slowly working up to this.

[00:08:51] Speaker 02:
So now I've got to go back to your answer to the previous question.

[00:08:54] Speaker 02:
So if a consumer,

[00:08:57] Speaker 02:
uses Google Map with their own telephone and provides the information of their GPS location, which Google then, based on that, puts a map pinpoint.

[00:09:08] Speaker 02:
You told me that wasn't okay.

[00:09:10] Speaker 02:
What's the difference between the good locksmith and the consumer other than that you represent the good locksmith?

[00:09:15] Speaker 01:
Let me see if I can clarify this.

[00:09:18] Speaker 01:
If all we have is a

[00:09:22] Speaker 01:
publication based on the information provided by the legitimate locksmith.

[00:09:30] Speaker 01:
That would be protected by the CDA if all they are doing is republishing the information they obtained.

[00:09:37] Speaker 02:
Including their map location?

[00:09:39] Speaker 01:
A map location arguably is another depiction of, it's just another way of indicating where the Good Locksmith is located.

[00:09:53] Speaker 02:
And that's okay.

[00:09:54] Speaker 02:
That would be okay.

[00:09:55] Speaker 02:
Okay, so now I'll give you a chance to reconsider your answer to my original question.

[00:10:00] Speaker 02:
If I use my telephone to find my current location,

[00:10:08] Speaker 02:
And Google Maps reflects that on a map.

[00:10:12] Speaker 02:
That's the entire hypothetical.

[00:10:14] Speaker 02:
Their information is based on the information transmitted by my telephone, the correct information.

[00:10:20] Speaker 02:
Now, is that OK?

[00:10:23] Speaker 01:
I would say that the information is developed, that the publication of the map is based on – if all they do is republish the consumer's location, they are – have a publication based on information that they themselves developed.

[00:10:44] Speaker 01:
I would say that the search engine develops

[00:10:47] Speaker 01:
the consumer's location from the GPS.

[00:10:51] Speaker 01:
It's a tough one because I suppose one could argue that by merely calling, the consumer is providing their own location information.

[00:11:05] Speaker 02:
What we're really complaining about here... I know what you're complaining about, but in order for me to get to you on an understanding of what you think the CDA protects and what it doesn't, we've got to go through these questions.

[00:11:16] Speaker 02:
So bear with me.

[00:11:17] Speaker 02:
We already know that if the good locksmith lists their street address on their website and Google public... I'm going to use Google as the example here.

[00:11:27] Speaker 02:
Yes, sir.

[00:11:27] Speaker 02:
I understand there are other defendants.

[00:11:29] Speaker 02:
and Google represents that on a map.

[00:11:33] Speaker 02:
You told me that's protected by the CDA.

[00:11:35] Speaker 01:
If what Google represents... There's no more ifs.

[00:11:38] Speaker 01:
I gave you all the facts.

[00:11:40] Speaker 01:
Yes.

[00:11:41] Speaker 01:
If it's nothing more than what they received from the good locksmith.

[00:11:44] Speaker 01:
Okay.

[00:11:45] Speaker 02:
Now, if I, using my telephone, electronically, obviously, send my GPS coordinates to Google and they represent where I am on a map, because I want to know where I am because I am lost,

[00:11:59] Speaker 02:
Is that protected?

[00:12:03] Speaker 02:
Yes or no?

[00:12:06] Speaker 02:
It has to be yes in giving your answer to the first question.

[00:12:08] Speaker 01:
I think it is yes.

[00:12:09] Speaker 01:
Yes.

[00:12:09] Speaker 01:
Yes.

[00:12:09] Speaker 02:
To be consistent.

[00:12:10] Speaker 02:
So now we know, then, that it is not simple, that there are some things that, even in your terms, can be developed in maybe English language, but which don't come within the statutory definition of developed, right?

[00:12:26] Speaker 01:
Yes.

[00:12:26] Speaker 02:
Because you're developing a pictorial representation based on a street address,

[00:12:33] Speaker 02:
in the example of a good locksmith and based on a GPS transmission from my telephone in the example of a consumer, right?

[00:12:43] Speaker 01:
Yes, to the extent that the search engine simply depicts the exact information they obtained from the good locksmith and the consumer on a map,

[00:12:56] Speaker 01:
that appears to be covered by the CDA.

[00:12:59] Speaker 02:
But of course, that's not the way the information comes.

[00:13:02] Speaker 02:
It doesn't come to them in a map.

[00:13:03] Speaker 02:
In fact, it comes to them in some kind of transmission over the internet.

[00:13:08] Speaker 02:
which in the end are ones and zeros, and it then transmits into and transforms into a pictorial representation.

[00:13:16] Speaker 02:
So there has to be something that the search engine does that you're acknowledging is not actually, is something that they themselves are, quote, creating, but is still protected.

[00:13:28] Speaker 01:
What we're concerned with is when you have the scammer locksmith with no address at all,

[00:13:36] Speaker 01:
They put a map pinpoint.

[00:13:38] Speaker 01:
That map pinpoint is not based on any information they obtained from the scammer.

[00:13:46] Speaker 01:
Locksmith.

[00:13:47] Speaker 02:
Well, it's based on some information.

[00:13:49] Speaker 01:
It's based on some.

[00:13:50] Speaker 07:
Wait, wait, wait.

[00:13:51] Speaker 07:
What do you think it's based on?

[00:13:52] Speaker 07:
It's got to be based on something.

[00:13:55] Speaker 07:
The existence of a scammer isn't enough for any of the defendants to do anything.

[00:14:01] Speaker 07:
They could put a pinpoint in Keokuk, Iowa.

[00:14:05] Speaker 07:
So there's got to be something.

[00:14:07] Speaker 01:
It's based, yes.

[00:14:08] Speaker 07:
What do you mean?

[00:14:09] Speaker 01:
It's based in part on what they get from the scammer.

[00:14:14] Speaker 01:
The scammer, but also in part.

[00:14:16] Speaker 07:
Wait, wait, wait.

[00:14:17] Speaker 07:
Now, chief, I got to go slowly here.

[00:14:20] Speaker 07:
What is it you acknowledge that they're getting from the scammer, on which they rely to not go to Keokuk, Iowa, but to be

[00:14:30] Speaker 01:
Let's say the scammer represents that it provides service throughout the DC metropolitan area.

[00:14:38] Speaker 01:
The search engine will arbitrarily put a pinpoint and often actually assign an arbitrary address to the scammer somewhere in the DC area.

[00:14:52] Speaker 01:
And we would say that it's one thing to say you're in area 703 or area 202.

[00:15:00] Speaker 01:
But when you pinpoint a specific location and specific address, that's additional new information.

[00:15:09] Speaker 01:
And the statute speaks in terms of the information.

[00:15:13] Speaker 01:
That's information that is coming from the search engine.

[00:15:18] Speaker 01:
And what they're doing is trying to show that the scammer

[00:15:27] Speaker 01:
is nearby or the scammer in relationship to the consumer.

[00:15:32] Speaker 01:
That relationship itself is new information that the search engine develops.

[00:15:38] Speaker 01:
We're not saying that everything they publish doesn't come from, but the way the statute reads, you have two parts.

[00:15:49] Speaker 01:
One, the statute said that they're not to be treated as the publisher if they publish something coming from another information provider.

[00:15:58] Speaker 01:
But then the statute goes on and said they are to be treated as the publisher if what they publish in whole or in part

[00:16:07] Speaker 01:
is of their own creation or development.

[00:16:12] Speaker 01:
And what we are saying is part of the information they are publishing, they develop and create themselves.

[00:16:20] Speaker 01:
And it's that part of the information that

[00:16:24] Speaker 01:
The idea that this scammer who may be anywhere is right near the inquiring consumer is what induces the consumer to call that scammer rather than a legitimate locksmith who may be another half a mile away.

[00:16:48] Speaker 04:
For states that do not require, like the District of Columbia, they do not require licensing of locksmiths.

[00:16:56] Speaker 04:
So no licensing is required.

[00:16:58] Speaker 04:
What exactly is the harm then that a non-licensed locksmith shows up?

[00:17:05] Speaker 01:
It is typically a species of fraud.

[00:17:09] Speaker 01:
They're typically overcharged.

[00:17:11] Speaker 01:
You will see these scammer ads locked out of your home.

[00:17:17] Speaker 01:
Call us $19.

[00:17:20] Speaker 01:
You show up, they say, oh, the $19 gets us here.

[00:17:24] Speaker 01:
It's $300 to get you out of the, to get you back to your home.

[00:17:27] Speaker 01:
And then instead of using the professional skills and tools.

[00:17:31] Speaker 04:
So we're in the district and there's no licensing requirement at all.

[00:17:36] Speaker 01:
If there's no.

[00:17:37] Speaker 04:
And so how is one to know categorically, you can't say the non-licensed ones are the ones that are the scammers.

[00:17:44] Speaker 04:
How do you know which ones are the scammers?

[00:17:47] Speaker 04:
Or how would,

[00:17:49] Speaker 04:
the service providers know which ones are the scammers versus which ones aren't.

[00:17:54] Speaker 04:
They can't look to licensing records.

[00:17:57] Speaker 01:
Well, I think there are a number of indicia.

[00:17:59] Speaker 01:
The first indicia of the scammer is the obfuscation or lack of identification.

[00:18:06] Speaker 01:
The consumer never really knows who they're dealing with.

[00:18:10] Speaker 04:
Let me be to the consumer.

[00:18:11] Speaker 04:
I'm talking to the Internet service providers here.

[00:18:14] Speaker 01:
Even the search engines, when they see something that there is no identification of who it is, there is no indication as to the source of the information, no backlink.

[00:18:27] Speaker 01:
You know, that certainly suggests that this may not be legitimate.

[00:18:32] Speaker 04:
How much research are they supposed to do in each individual jurisdiction to figure out who's, where there's no licensing required to figure out who's a scammer and who's not?

[00:18:42] Speaker 04:
It seems impossible to me.

[00:18:43] Speaker 04:
How are they supposed to know, within Washington, D.C., who's a scammer and who's not?

[00:18:48] Speaker 01:
Well, because for one thing, they've had many, many, many complaints and they ignore them.

[00:18:52] Speaker 01:
But getting beyond

[00:18:55] Speaker 01:
Beyond that, Washington, D.C., the district... I get lots of complaints about lots of things.

[00:19:01] Speaker 01:
Maryland and Virginia both require licenses.

[00:19:03] Speaker 04:
I'm talking about there's a lot of states, the minority of states that require a license.

[00:19:07] Speaker 01:
In the district, you will need a general business license.

[00:19:14] Speaker 01:
The concern is whether they know they are a scammer or not.

[00:19:21] Speaker 01:
the publishing of additional new information.

[00:19:26] Speaker 01:
gives them additional legitimacy.

[00:19:30] Speaker 01:
And that's what we're focusing on here.

[00:19:32] Speaker 04:
So we're in the District of Columbia.

[00:19:34] Speaker 04:
There's no licensing required.

[00:19:37] Speaker 04:
And they drop a pinpoint that suggests a locksmith is near Georgetown.

[00:19:46] Speaker 04:
But they aren't certain what the address is.

[00:19:49] Speaker 04:
And that person comes, and they are actually wonderful locksmiths.

[00:19:55] Speaker 04:
They may not have precise address, but they are very honest and provide great service.

[00:20:01] Speaker 04:
That could happen.

[00:20:02] Speaker 00:
It could happen, yes.

[00:20:03] Speaker 04:
Okay, so they can't tell just by the fact that maybe they don't have as precise an address as they do with some businesses.

[00:20:10] Speaker 04:
Which category they fall into?

[00:20:12] Speaker 01:
As a practical matter, the legitimate locksmiths

[00:20:15] Speaker 01:
want to and do identify who they are, where the shops are located.

[00:20:22] Speaker 01:
By making up addresses... No, I'm talking about the other group, right?

[00:20:25] Speaker 04:
You have your clients who do that, but your argument seems to assume that in states even where licensing isn't required, 100%

[00:20:33] Speaker 04:
of those who don't have as precise an address as your clients are fraudulent and are supposed to be, you're either arguing that if they don't have as much address identification as your clients, they must be deemed fraudulent, or you're requiring the internet service providers to do individual research on their locksmith.

[00:20:54] Speaker 01:
Not that they must be fraudulent, but the lack of identification is certainly one indicator that something is wrong.

[00:21:00] Speaker 01:
What we are concerned with.

[00:21:02] Speaker 04:
But if they're perfectly fine, you wouldn't say it's a problem for them to show them on the map.

[00:21:08] Speaker 04:
There's nothing unlawful, no licensing required, and they're providing perfectly fine service.

[00:21:12] Speaker 04:
So how are they supposed to differentiate?

[00:21:15] Speaker 01:
When the search engines take the information from the scammer, or the possible scammer,

[00:21:25] Speaker 01:
And they add to it precise location and address information that they make up themselves.

[00:21:35] Speaker 01:
That gives the scammer added legitimacy.

[00:21:41] Speaker 01:
It makes him look like he's really an established locksmith with a shop nearby.

[00:21:48] Speaker 04:
Would you dispute the test?

[00:21:51] Speaker 04:
I didn't hear your brief disputing this.

[00:21:54] Speaker 04:
The question is whether the information, assuming you're correct, that they're creating substantive information of their own.

[00:22:01] Speaker 04:
that it's only relevant for purposes of getting them out, disqualifying them from CDA immunity if that information that they create materially contributes to the illegality?

[00:22:17] Speaker 04:
Do you agree that it has to, it's not just that they create, they create information, it's that it's information that contributes materially to the illegality, correct?

[00:22:27] Speaker 04:
Do you dispute that legal test?

[00:22:28] Speaker 01:
No, let me address that in two ways.

[00:22:34] Speaker 01:
First of all, we're talking about the immunity afforded by the CDA, the statute.

[00:22:41] Speaker 01:
The statute does not talk at all about the effect or the content of the information.

[00:22:49] Speaker 01:
The statute speaks only to whether it was developed or created by the publisher.

[00:22:58] Speaker 01:
And so what we are saying is if they developed or created the new information, the statute doesn't apply.

[00:23:07] Speaker 01:
That doesn't necessarily mean that what they published is somehow unlawful.

[00:23:11] Speaker 01:
That's a different level of proof, and that's farther down the proceeding.

[00:23:16] Speaker 01:
What it means is if they've created information

[00:23:23] Speaker 01:
that is part of their publication or develop information that's part of their publication, whatever defenses they have, and they may have many,

[00:23:33] Speaker 01:
the CDA defense does not obtain.

[00:23:37] Speaker 04:
What if the information they created had nothing to do with the illegality?

[00:23:40] Speaker 04:
They said vegetarian, vegan, carnivore.

[00:23:43] Speaker 04:
They added that to the locksmith information.

[00:23:46] Speaker 04:
It has nothing to do with the fraud or illegality.

[00:23:48] Speaker 04:
You would still say they lose all immunity for anything?

[00:23:51] Speaker 01:
Within the literal wording of the statute, if they are providing information beyond what they received from

[00:24:00] Speaker 01:
the scammer or the information provider.

[00:24:04] Speaker 04:
Then under the literal reading of the statute... I'm asking you whether that's your position.

[00:24:11] Speaker 01:
That additional information would take it out of the CDA protection.

[00:24:18] Speaker 04:
And that's your position.

[00:24:19] Speaker 01:
Yes, but it doesn't necessarily mean it's illegal.

[00:24:22] Speaker 01:
It's unlawful.

[00:24:23] Speaker 01:
The plaintiff would still have to prove that there is something unlawful about it.

[00:24:28] Speaker 01:
It only means that that defense is not available.

[00:24:32] Speaker 01:
As the court stated in the Facebook case, it's an affirmative defense, and it must be evident from the face of the complaint that the CDA applies.

[00:24:46] Speaker 04:
If the test adopted for CDA immunity for immunity were, just assume it were, that the fraud had to materially contribute to the harm alleged by a plaintiff.

[00:25:01] Speaker 04:
Do you lose?

[00:25:02] Speaker 01:
We believe that the additional information, that is this phony location information, does materially contribute to the harm because it tends to induce consumers.

[00:25:16] Speaker 01:
These maps are published

[00:25:18] Speaker 01:
for the very purpose of suggesting to the consumer that the person shown are nearby.

[00:25:24] Speaker 04:
And it... And you agreed that they're nearby because they show up.

[00:25:28] Speaker 04:
It's not like they take... It's not like they show up an hour later.

[00:25:30] Speaker 01:
Well, we don't know where they're showing up from.

[00:25:31] Speaker 01:
They just show up.

[00:25:33] Speaker 04:
I understand.

[00:25:33] Speaker 04:
But they've got to be local to show up in the parking lot.

[00:25:36] Speaker 04:
They can't be coming in from Iowa.

[00:25:38] Speaker 01:
But local could be anywhere from Gaithersburg to Springfield to

[00:25:45] Speaker 01:
to where when the consumer is right out here.

[00:25:48] Speaker 01:
In fact, the math suggests that the consumer is more likely to call somebody who is closer.

[00:25:57] Speaker 01:
And when they arbitrarily and artificially put somebody closer, that materially contributes it.

[00:26:04] Speaker 01:
But as I said earlier,

[00:26:09] Speaker 01:
Whether it materially contributes to the fraud or not, I don't know where the district judge got that because it's not in the statute.

[00:26:17] Speaker 01:
The statute talks about the immunity based upon the origin, upon whether the public information.

[00:26:30] Speaker 02:
I think the judge got it from another circuit's test.

[00:26:33] Speaker 02:
Pardon?

[00:26:33] Speaker 02:
The judge got it from another circuit's test.

[00:26:36] Speaker 02:
The session I'll be filling to?

[00:26:39] Speaker 02:
No, the material contribution test is another circuit applied.

[00:26:43] Speaker 02:
My hearing is not what it was.

[00:26:45] Speaker 02:
The material contribution test is applied by another circuit.

[00:26:48] Speaker 02:
That's where the judge got it.

[00:26:51] Speaker 02:
I'm not saying it's correct or not correct, but it's not as if the judge made it up on his own.

[00:26:56] Speaker 01:
It's not in the statute.

[00:26:57] Speaker 01:
We think it's material.

[00:26:59] Speaker 01:
Moreover, we think we should have an opportunity to prove that it's material.

[00:27:06] Speaker 01:
A finding that it's not material is a finding of fact.

[00:27:10] Speaker 01:
that perhaps a district judge could make properly after there's been some evidence, after there's been some discovery.

[00:27:18] Speaker 01:
But that's not a finding of fact that should be made based on the face of a complaint under Rule 12b6.

[00:27:43] Speaker 05:
May it please the court, it's Kathleen McCarthy on behalf of the defendants.

[00:27:47] Speaker 05:
This circuit in Klayman held or that section 230 mandates that the

[00:27:57] Speaker 05:
When a complaint seeks to hold interactive service providers liable for publishing third party information, the complaint should be dismissed.

[00:28:09] Speaker 05:
And the district court correctly realized that the falsity at issue here derives from third parties.

[00:28:20] Speaker 05:
And that any accompanying representations

[00:28:24] Speaker 05:
by any of the defendants were not adequately pled.

[00:28:28] Speaker 02:
What about this claim about street addresses?

[00:28:32] Speaker 02:
First, this may require going outside the record, just so I have some idea, but is it the case that where a website does not provide a street address, but only provides, for example, an area 202 telephone number that

[00:28:49] Speaker 05:
Is there a case involving that particular scenario?

[00:28:52] Speaker 02:
Will the defendants put a specific street address on the map?

[00:29:00] Speaker 07:
That's their allegation.

[00:29:01] Speaker 07:
That's different from the case you're citing.

[00:29:04] Speaker 05:
That is their allegation.

[00:29:06] Speaker 05:
And are you asking me what the defendants do, which is not in the record, which I'd be happy to tell you what Google does?

[00:29:14] Speaker 02:
I'm going to ask two questions.

[00:29:16] Speaker 02:
The first one is that one, which not in any way is going to be dispositive to this case, but I'm interested in knowing.

[00:29:22] Speaker 02:
Then we'll talk about the question of whether it affects your CDA immunity.

[00:29:28] Speaker 05:
The map functionality by these defendants has been under development and improved and changed over the years.

[00:29:38] Speaker 05:
When interactive maps were first created, it was entirely possible for a third-party business to post a pinpoint that would say, I'm here.

[00:29:49] Speaker 05:
This is where I am.

[00:29:52] Speaker 05:
That was prone to scam, as a lot of things on the internet are prone to scam.

[00:29:57] Speaker 05:
And as the maps have developed over time, various methods of verification have been implemented.

[00:30:06] Speaker 05:
For example, if you say... No, that's not quite the question.

[00:30:09] Speaker 02:
The question I'm asking is, is there ever a time when one of the defendants will list an address that is not provided by

[00:30:30] Speaker 02:
the scam locksmith, the real locksmith, any company, an actual street address.

[00:30:35] Speaker 05:
I suppose it's possible.

[00:30:36] Speaker 05:
I don't have an example of that.

[00:30:38] Speaker 05:
I haven't been able to find that.

[00:30:40] Speaker 05:
He provides no examples in the complaint, no explanation of how that would happen.

[00:30:45] Speaker 05:
But these maps are neutral tools that take information from the question.

[00:30:51] Speaker 02:
I don't want a general description.

[00:30:53] Speaker 02:
This is the one thing that's bothering me a bit.

[00:30:56] Speaker 02:
And so if you will help me with this, that would be helpful.

[00:30:58] Speaker 02:
So now let's take it as a hypothetical.

[00:31:01] Speaker 02:
Imagine that all the only information you get from the scam locksmith is a telephone number.

[00:31:09] Speaker 02:
Okay.

[00:31:10] Speaker 02:
But you represent a specific street address.

[00:31:15] Speaker 02:
which is not the street address that goes back to that telephone number in some reverse lookup book.

[00:31:21] Speaker 02:
It's just a specific street address.

[00:31:23] Speaker 02:
Now, is that the creation and development of information?

[00:31:27] Speaker 05:
No, that would be protected by the CDA.

[00:31:29] Speaker 02:
Why would that be?

[00:31:30] Speaker 02:
Even if that information did not come from anyone other than from the defendant itself.

[00:31:38] Speaker 07:
Wait, wait, wait.

[00:31:40] Speaker 07:
I have the same concern.

[00:31:42] Speaker 07:
I'm not understanding your answer.

[00:31:44] Speaker 07:
Joe's locksmith, allegedly a scammer, gives you a phone number.

[00:31:49] Speaker 07:
You can't get an address by reference to that phone number.

[00:31:54] Speaker 07:
Wait a minute.

[00:31:56] Speaker 07:
The search engine says Joe's locksmith, telephone number, 2801 New Mexico Avenue, Washington, D.C.

[00:32:05] Speaker 07:
I'm using my own address.

[00:32:06] Speaker 07:
They are not there.

[00:32:08] Speaker 07:
And they put that on.

[00:32:10] Speaker 07:
That's not the same as the existing cases.

[00:32:13] Speaker 07:
You think that's okay?

[00:32:14] Speaker 05:
I think it's fine.

[00:32:15] Speaker 05:
I think it's very equivalent to what happens with a search engine organic search page where you do a search that says locksmith near me and maybe at the top there's an advertisement for a locksmith who is not as near to you as perhaps some other locksmith was.

[00:32:38] Speaker 07:
Wait, wait, wait.

[00:32:39] Speaker 07:
I want to make sure I have a limited little question.

[00:32:43] Speaker 07:
I want to make sure I'm getting the answer to this.

[00:32:45] Speaker 07:
Your client has nothing more than a reference to Joe's locksmith, maybe a telephone number which gets them no address by any technology.

[00:32:55] Speaker 07:
It won't get them an address.

[00:32:57] Speaker 07:
What they then produce and put on any one of these search engines, if I look up and see Joe's locksmith, I now have an address that your client has added.

[00:33:11] Speaker 07:
It comes from nowhere.

[00:33:12] Speaker 07:
They just added it.

[00:33:14] Speaker 05:
I still think that's protected under the CDA.

[00:33:16] Speaker 05:
These platforms are entitled to set up their maps.

[00:33:20] Speaker 07:
To make up things.

[00:33:21] Speaker 05:
To set up their maps in the manner that they want to set up their maps.

[00:33:26] Speaker 05:
To develop their algorithms in a manner that they believe is going to produce useful products.

[00:33:35] Speaker 07:
If there were a situation, now in the... Those locksmith and then they also do hairdressing.

[00:33:43] Speaker 07:
and they give an address, and the hairdresser location is down the street.

[00:33:47] Speaker 07:
I mean, they can add all of these things.

[00:33:51] Speaker 07:
They don't do that, and they wouldn't do that, but under the CDA- No, no, no, that's a- Wait, forget your answer to that question, because we don't know the answer to that question.

[00:34:00] Speaker 07:
That's in a pleading, and it was killed on a motion to dismiss.

[00:34:04] Speaker 07:
So we don't know, and you've never responded.

[00:34:07] Speaker 07:
I'm giving you a hypothetical.

[00:34:09] Speaker 07:
Is that enough to survive a motion to dismiss?

[00:34:12] Speaker 07:
They're simply adding all kinds of information about Joe's locksmith that Joe has never given.

[00:34:18] Speaker 05:
If the allegation in the complaint were that the information that was added by the search engine materially contributed to the harm at issue here,

[00:34:33] Speaker 05:
then there might be a claim.

[00:34:35] Speaker 05:
There's an affirmative representation by the search engine, very clear.

[00:34:41] Speaker 05:
This would be the Anthony versus Yahoo case, for example.

[00:34:45] Speaker 05:
Anthony versus Yahoo involved the Yahoo dating service.

[00:34:50] Speaker 05:
So there are fake profiles in a dating service, as there might be, because there are people who think it's funny to create a fake profile.

[00:35:01] Speaker 05:
Yahoo is not responsible for the fake profiles that... I don't think that's exactly the question.

[00:35:08] Speaker 02:
We're not talking about a fake locksmith who fake represents that they are on New Mexico Avenue.

[00:35:16] Speaker 02:
We're not talking about that.

[00:35:17] Speaker 02:
I think we understand your argument that that's protected.

[00:35:21] Speaker 02:
We're talking about a situation where the locksmith doesn't make any representation about a street address.

[00:35:31] Speaker 05:
How is the presentation on a map, then, if there is a local person that will come, as Judge Malat said, and provide the services, how is that materially contributing to what plaintiff is alleging?

[00:35:48] Speaker 02:
So I'd say two things about that.

[00:35:50] Speaker 02:
One, judges ask the questions.

[00:35:56] Speaker 02:
And two, their argument here is that,

[00:36:02] Speaker 02:
There's two ways, two different issues in this case.

[00:36:07] Speaker 02:
One is whether it comes within the create and develop test and whether it comes within the, I'm trying to remember, there's language in some of the cases about editorial content and routine changes and algorithmic changes, et cetera.

[00:36:28] Speaker 02:
You have now fallen back to the second test, which this court has not yet adopted, which is the materially contributes test.

[00:36:37] Speaker 02:
Are you telling me you can't win without going to the materially contributes test?

[00:36:41] Speaker 05:
No.

[00:36:42] Speaker 05:
No.

[00:36:42] Speaker 02:
We can win.

[00:36:44] Speaker 02:
OK.

[00:36:45] Speaker 02:
Then explain how you win without the argument that you just made, which was asking me whether

[00:36:54] Speaker 02:
how this materially contributes to the unlawfulness.

[00:36:57] Speaker 02:
That's the fallback test.

[00:36:59] Speaker 02:
We will discuss that, I promise.

[00:37:01] Speaker 02:
But first, I want to know how you win without that.

[00:37:03] Speaker 05:
The map is essentially, as I believe Your Honor was questioning my opponent, is a pictorial representation.

[00:37:11] Speaker 02:
I get totally with the map.

[00:37:14] Speaker 02:
In fact, I browbeat the other side into agreeing with you on that point.

[00:37:19] Speaker 02:
The question is the street address, not the pictorial representation based on GPS or something like that.

[00:37:27] Speaker 05:
Well, if we assume, for the sake of argument, that the search engines are making up street addresses, I still believe the defendants as

[00:37:42] Speaker 05:
Interactive service providers are entitled to set up a map any way they want if you as a As a customer an advertiser on the platform Pays money if they did this not that they do but if they did this you you set up your map so that the people that

[00:38:03] Speaker 05:
who pay you more money get a pinpoint closer to whoever's asking.

[00:38:07] Speaker 05:
That's no different from a search engine page where you get a search result at the top of the page that, you know, has an advertisement for somebody who pays you to place a replacement.

[00:38:20] Speaker 07:
You're wandering off the question.

[00:38:23] Speaker 07:
You are trying to get hard to the materially contribute test.

[00:38:27] Speaker 07:
You know, I hear you.

[00:38:29] Speaker 07:
That's not what we're asking.

[00:38:31] Speaker 05:
I think it's more a neutral tool.

[00:38:33] Speaker 07:
Don't make it a map.

[00:38:34] Speaker 07:
Make it an address.

[00:38:36] Speaker 07:
There's a list.

[00:38:37] Speaker 07:
Show us the locksmiths, your client.

[00:38:40] Speaker 07:
They list the lot.

[00:38:41] Speaker 07:
No map.

[00:38:42] Speaker 07:
They list them and they put in phony addresses.

[00:38:45] Speaker 07:
That's nearly an allegation.

[00:38:46] Speaker 07:
I'm not saying they do or they don't.

[00:38:48] Speaker 07:
They make up addresses and they make up information about Joe's locksmith.

[00:38:53] Speaker 07:
that they got from nowhere other than their own heads.

[00:38:56] Speaker 07:
No algorithms or anything.

[00:38:58] Speaker 07:
They just make it up.

[00:38:59] Speaker 05:
Well, if you look at the pleading as a whole, and you look at the arguments that have been made in the briefing, it's very clear that the locksmiths plaintiffs here are alleging that this information is derived from location content that's provided.

[00:39:14] Speaker 02:
That's what I thought your explanation was going to be.

[00:39:16] Speaker 02:
It's taken a bit to get to it.

[00:39:17] Speaker 02:
I thought it was that you have an algorithm that takes into account the representation that the person is in Washington, DC, and a telephone number

[00:39:27] Speaker 02:
which associates with Washington DC because it's a 202 number and maybe they also do a reverse directory if there is such a thing anymore for cell phones.

[00:39:39] Speaker 02:
And maybe that's how you do it.

[00:39:43] Speaker 02:
And so it's all derived from information provided plus a pure mathematical algorithm.

[00:39:50] Speaker 02:
Is that an accurate representation of both of what happens and what your explanation would be?

[00:39:55] Speaker 05:
That is an accurate representation of what happens.

[00:39:58] Speaker 05:
The algorithm includes many, many, many different points.

[00:40:01] Speaker 05:
And what you're talking about is a search engine platform taking all of this information and deciding how to present it to a customer.

[00:40:11] Speaker 07:
Right, now the problem is that's not their allegation.

[00:40:14] Speaker 07:
That is among their allegations.

[00:40:16] Speaker 07:
Their allegation is, and I totally get what you're saying on that.

[00:40:20] Speaker 07:
And I totally understand how that argument works pretty easily for you.

[00:40:24] Speaker 07:
What they are saying in a complaint at a state motion to dismiss, it may or may not be implausible, I don't know, because you haven't responded to it, that they're not deriving it from anything.

[00:40:37] Speaker 07:
They are simply making it up.

[00:40:39] Speaker 07:
They are making up an address.

[00:40:41] Speaker 07:
That's their allegation.

[00:40:42] Speaker 07:
Now, the question is, on a motion to dismiss, can a judge say, no, that sounds implausible.

[00:40:49] Speaker 05:
Yes, the judge can say it sounds implausible.

[00:40:52] Speaker 05:
The Nemet Court in the Fourth Circuit affirmed a district court decision where the judge says it's implausible that these eight reviews, specific reviews that have been identified by the plaintiff and the plaintiff said it was a car dealership, right?

[00:41:07] Speaker 05:
So the car dealership says, hey, this consumeraffairs.com site has these eight reviews that are negative to me that I think are completely fabricated

[00:41:17] Speaker 05:
Because I don't have any record of those specific customers buying those specific cars at those specific dates There is no other record.

[00:41:26] Speaker 05:
I can find anywhere that shows that those Those customers made any complaint to the Department of Consumer Affairs.

[00:41:34] Speaker 05:
There's Consumer Affairs must have made him up.

[00:41:38] Speaker 07:
This was the defendant's response you're saying

[00:41:41] Speaker 07:
The defendant's response saying, I don't have any such information.

[00:41:46] Speaker 07:
Is that right?

[00:41:47] Speaker 07:
I'm just trying to understand.

[00:41:48] Speaker 05:
No, no, no.

[00:41:49] Speaker 05:
The plaintiff.

[00:41:49] Speaker 05:
The plaintiff was pleading.

[00:41:51] Speaker 05:
These must have been made up by the defendant because I, the plaintiff, can't figure out where this information came from.

[00:41:59] Speaker 05:
And the Fourth Circuit affirmed the district court saying, that sort of speculative sort of get around the statute

[00:42:09] Speaker 05:
Conclusory threadbare allegation is not enough.

[00:42:12] Speaker 07:
So there, let me just add something.

[00:42:15] Speaker 07:
And again, I don't know where it goes.

[00:42:16] Speaker 07:
They claim, and I don't know whether they can do it or not, because I'm just thinking we're at a motion to dismiss.

[00:42:22] Speaker 07:
They claim, we have the information and we'll show you these made-up addresses.

[00:42:28] Speaker 07:
Now, I don't know whether that's true or not.

[00:42:30] Speaker 07:
but they weren't put to the test, can they be dismissed on a notion of implausibility when they say, we have that information?

[00:42:39] Speaker 05:
They shouldn't have put that information in the complaint.

[00:42:41] Speaker 07:
You're saying they have to plead it, you're saying.

[00:42:44] Speaker 05:
I'm saying they have to plead it now.

[00:42:46] Speaker 07:
We've reached the point now with Igball et al.

[00:42:49] Speaker 07:
that at a motion to dismiss, you have to do what we used to do in summary judgment.

[00:42:54] Speaker 07:
You've got to put your whole case in and refute any defenses

[00:42:58] Speaker 07:
along the way, otherwise we're going to dismiss you on a motion to dismiss.

[00:43:02] Speaker 05:
No, no.

[00:43:03] Speaker 05:
You have to put enough to make your claim not... They did.

[00:43:06] Speaker 07:
They said, and in notice pleading, the old days anyway, and I'm not saying, you know, maybe you're right, but in notice pleading, they did make the claim.

[00:43:14] Speaker 07:
They said, we have the phony addresses.

[00:43:17] Speaker 05:
Well, in this particular case, in their reply brief, they didn't say, in the reply brief on page five, they said, we have no idea.

[00:43:25] Speaker 05:
They essentially said, we have no idea.

[00:43:27] Speaker 05:
where this address comes from.

[00:43:29] Speaker 05:
And that cannot be enough to open the door to discovery in a Section 230 case where you really are talking about, I, we don't know what they're talking about.

[00:43:39] Speaker 04:
We don't think that they're accurate.

[00:43:42] Speaker 04:
They don't know because it's not coming from the locksmith.

[00:43:44] Speaker 05:
But all of those locksmiths, those locksmiths all know what it takes to get a pinpoint on a map because they do it.

[00:43:52] Speaker 05:
So why don't they allege some facts?

[00:43:54] Speaker 04:
That's not the allegation, right?

[00:43:55] Speaker 04:
The allegation is someone says, I'm Joe's locksmith, and I have area code 703, and someone does a search for local locksmiths near me, and suddenly Joe's locksmith pops up with not just that phone number, but an address, or even just a multi-block area.

[00:44:19] Speaker 04:
that shows, that communicates this locksmith is near you, but that information didn't come from Joe.

[00:44:25] Speaker 04:
It didn't come from the consumer.

[00:44:27] Speaker 04:
The only other place it could have come from.

[00:44:30] Speaker 05:
How do we know it didn't come from Joe?

[00:44:32] Speaker 04:
Because that's my hypothetical cheese.

[00:44:35] Speaker 02:
We're having the same problem here.

[00:44:37] Speaker 02:
Questions have to come from the bench.

[00:44:40] Speaker 02:
Can I ask you about the inducement?

[00:44:41] Speaker 02:
Are you finished?

[00:44:42] Speaker 04:
I didn't know you had an answer.

[00:44:43] Speaker 02:
Do you have an answer?

[00:44:45] Speaker 04:
I'm sorry, I lost track of what the... You were trying to rely on their argument that they don't know where it came from, Michelle, because you guys must have added it.

[00:44:51] Speaker 04:
Now, you may dispute that as a matter of fact, but if the allegation is not provided by the locksmith, not provided by the consumer, and yet it shows up on a pin drop map or a list of local locksmiths, you're responsible for it.

[00:45:09] Speaker 05:
If your algorithm... Well, it's only...

[00:45:12] Speaker 05:
part of the fraud if the locksmith doesn't show up locally, right?

[00:45:19] Speaker 05:
It's the same, the pinpoint.

[00:45:21] Speaker 04:
No, that's not their argument.

[00:45:22] Speaker 04:
The argument is local.

[00:45:23] Speaker 04:
People want local businesses.

[00:45:26] Speaker 04:
The pinpoint.

[00:45:26] Speaker 04:
And you're saying someone's local without knowing that they're local.

[00:45:29] Speaker 04:
703 is a very large area code.

[00:45:31] Speaker 04:
They may not be local at all.

[00:45:36] Speaker 05:
If you took their argument to extreme, though, I think you're

[00:45:41] Speaker 05:
your honor was right in that what are the search engines supposed to do to try to?

[00:45:47] Speaker 05:
Not give an address.

[00:45:50] Speaker 04:
Even if they're paying you ad money, they don't give you an ad, you don't give an address.

[00:45:54] Speaker 04:
That's what they would say, I think.

[00:45:56] Speaker 05:
Which is why I think for allegations like this that are clearly intended, when you look at the complaint, which talks about hundreds of thousands of websites by these other locksmiths,

[00:46:10] Speaker 05:
that are out on the internet, right, that provide area codes, that provide claims of local business.

[00:46:17] Speaker 05:
Hundreds of thousands is what they allege in the complaint.

[00:46:20] Speaker 05:
You have hundreds of thousands of those, and you have just a bald allegation, defendants create the address.

[00:46:28] Speaker 05:
You also have all these allegations that say defendants use all kinds of algorithms, right?

[00:46:33] Speaker 05:
And yet not a single example, not a single screenshot.

[00:46:38] Speaker 04:
Let me try this one more time.

[00:46:39] Speaker 04:
So other than the defendants here, let's imagine there's yet another internet service provider, the bad provider.

[00:46:48] Speaker 04:
And what happens when someone searches on there is that they plug in specific addresses.

[00:46:57] Speaker 04:
gets people more business, people buy more ads from them.

[00:47:01] Speaker 04:
They plug in the address themselves.

[00:47:05] Speaker 04:
All I'm asking you is, would that count as the creation or development of content for purposes of the CDA?

[00:47:14] Speaker 04:
Yes or no?

[00:47:15] Speaker 05:
No.

[00:47:19] Speaker 05:
It's really literally no different from a search engine deciding what they're going to put on the first page.

[00:47:25] Speaker 05:
with all kinds of algorithms.

[00:47:28] Speaker 05:
There is nothing wrong with pay to play.

[00:47:31] Speaker 05:
There's nothing wrong with saying, if you want to participate in Yelp and have me help you move your positive reviews to the top and pay me advertising, there's nothing wrong with that.

[00:47:44] Speaker 04:
The question is whether you still get CDA immunity, whether you're creating or developing content.

[00:47:48] Speaker 04:
That's the only question.

[00:47:50] Speaker 04:
And you say that is not the creation or development of content.

[00:47:52] Speaker 05:
That's not the creation or development of content of the type that Section 230 was meant to address.

[00:48:02] Speaker 05:
That is presenting information from others in a manner the search engine decides.

[00:48:09] Speaker 04:
My hypothetical was that the service provider creates the address.

[00:48:14] Speaker 05:
I don't think that that counts.

[00:48:16] Speaker 04:
Under the hypothetical, it is not from anyone else but the service provider, and your position is still that that is not the creation or development of content.

[00:48:23] Speaker 05:
That is not the creation or development of content that subjects the service provider to civil liability in a case like this one.

[00:48:37] Speaker 02:
You asked me why it was a material to the fraud, and I think that the opposing counsel explained why that test doesn't really help in this case, which is their whole claim is that people are induced to use the closest locksmith.

[00:48:54] Speaker 02:
If that's the test, then it's part of the fraud to get it's located as close as possible to the caller.

[00:49:04] Speaker 02:
So I don't see how the material contribute to the fraud test helps you here.

[00:49:12] Speaker 02:
I do understand it in other cases, but I don't understand how it helps you in this case.

[00:49:15] Speaker 02:
That seems to grab them in their complaint with respect to their fraud counts is that if they are not protected, if you are not protected by the CDA, what you've done assists the fraud.

[00:49:33] Speaker 05:
The fraud being a locksmith showing up who

[00:49:40] Speaker 02:
Well, or a locksmith who is not the closest one, beating out somebody who is the closest one when the competitor and therefore is injured.

[00:49:50] Speaker 02:
I mean, even leaving aside the question of whether the consumer is injured here, after all, the planets are not consumers.

[00:49:56] Speaker 02:
They are locksmiths.

[00:49:58] Speaker 02:
And they would like to be the closest locksmith.

[00:50:00] Speaker 02:
And if they actually are the closest locksmith, then they are being injured by somebody representing as closer when they're not actually closer.

[00:50:10] Speaker 05:
The claim, the harm there and the claim there is against the locksmith who's making the false representation about being closer.

[00:50:18] Speaker 05:
It's not against that.

[00:50:19] Speaker 07:
We just move on in circles on that.

[00:50:21] Speaker 07:
You're not accepting our hypothetical.

[00:50:24] Speaker 07:
We're trying to put that on your client, and I know I would resist, too, if I were in your place, but it's our hypothetical.

[00:50:31] Speaker 07:
And you're resisting it.

[00:50:32] Speaker 07:
We're saying it isn't the locksmith who has put themselves closer.

[00:50:36] Speaker 07:
It's your client who put them closer.

[00:50:39] Speaker 05:
The maps are essentially a neutral tool.

[00:50:43] Speaker 07:
No, we're going in circles again.

[00:50:46] Speaker 07:
That's inconsistent with our hypothetical.

[00:50:48] Speaker 07:
We're trying to get you completely away from that and try and replicate their allegation, whether it's right or wrong.

[00:50:56] Speaker 07:
I don't know.

[00:50:57] Speaker 07:
But you just don't want to go there.

[00:50:58] Speaker 07:
We're saying the algorithm don't work in our hypothetical.

[00:51:03] Speaker 05:
Well, if you look at the statute and the congressional policy behind the statute, the statute is set up so that internet service providers like the defendants here who are dealing with millions and millions of points of information are

[00:51:27] Speaker 05:
Given freedom from the specter of tort liability for the publishing decisions that they make about how they present their platforms, deciding where to put a pinpoint on a map is a publishing decision, essentially.

[00:51:46] Speaker 05:
I would say that if you decide you're gonna pepper your map with pinpoints that are not accurate,

[00:51:55] Speaker 05:
That's probably not a wise business move and that's probably not going to generate a lot of business for your particular map.

[00:52:04] Speaker 05:
But it's a publisher function.

[00:52:07] Speaker 05:
Where do you publish this third party phone number?

[00:52:12] Speaker 05:
Where are you going to put it?

[00:52:14] Speaker 05:
And I think that is essentially what Section 230 is designed to protect internet service providers against.

[00:52:24] Speaker 05:
Were it otherwise, plaintiffs in a case like this could essentially say, I'm aware that there are hundreds of thousands of businesses out there that are presenting websites to you

[00:52:43] Speaker 05:
on the internet, representing all this information about where they do business.

[00:52:50] Speaker 05:
And I don't know how the pinpoint is created, but let me get some discovery from these defendants.

[00:53:01] Speaker 07:
No, I mean, it's just too far away from what they're alleging.

[00:53:05] Speaker 07:
You know, I'm totally sympathetic to what you're just saying.

[00:53:07] Speaker 07:
You're right.

[00:53:08] Speaker 07:
You can knock them out pretty fast, but that's not what they're alleging.

[00:53:13] Speaker 05:
Well, they're alleging that... What they're alleging, if you look at the injunctive provision in the complaint, what they're seeking to stop these defendants from doing is publishing activity.

[00:53:33] Speaker 05:
Full stop.

[00:53:35] Speaker 05:
There are four different provisions in the adjunctive provision at the request at the end of the complaint.

[00:53:40] Speaker 05:
Publishing, publishing, publishing, publishing.

[00:53:42] Speaker 05:
Cease and desist from publishing.

[00:53:44] Speaker 05:
These are essentially publishing functions and publishing decisions that defendants are being charged with.

[00:53:52] Speaker 02:
Can we have further questions from the panel?

[00:53:54] Speaker 02:
OK, thank you.

[00:53:55] Speaker 05:
It just, defendants submit the decision should be affirmed.

[00:53:59] Speaker 02:
Thank you.

[00:53:59] Speaker 02:
We figured that would be the bottom line.

[00:54:01] Speaker 02:
All right, now we're here.

[00:54:03] Speaker 02:
I think we're over here, too.

[00:54:05] Speaker 02:
All right, we'll give you two more minutes.

[00:54:07] Speaker 02:
We'll give you two more minutes.

[00:54:08] Speaker 02:
Thank you, Your Honor.

[00:54:09] Speaker 02:
Could you tell us something about this allegation about screening?

[00:54:13] Speaker 01:
Very quickly, we are just looking.

[00:54:17] Speaker 01:
I think clearly alleged fictitious addresses, meant pinpoints and so on.

[00:54:23] Speaker 01:
We're looking for an opportunity to prove those allegations.

[00:54:26] Speaker 02:
But to take Judge Edwards' point, the law is no longer the law that it was when I was in law school after Iqbal and Twombly.

[00:54:35] Speaker 02:
And now you have to have plausible allegations based on factual allegations made in the complaint.

[00:54:42] Speaker 02:
What's plausible about the idea that they actually have made up

[00:54:47] Speaker 02:
Your claim is that they made up addresses based on no information from anywhere else.

[00:54:52] Speaker 02:
Is that your claim?

[00:54:56] Speaker 00:
Essentially, what they claim they're doing is trying to... No, no, no.

[00:55:02] Speaker 07:
No way.

[00:55:02] Speaker 07:
We're all over the place today.

[00:55:04] Speaker 07:
Answer the chief judge's question, exactly the one he asked, please, to help me.

[00:55:10] Speaker 01:
We allege that they are making up and putting in addresses because it advances their business focus.

[00:55:18] Speaker 07:
I don't care what their reason.

[00:55:19] Speaker 07:
Forget the reason.

[00:55:19] Speaker 01:
Forget the reason.

[00:55:20] Speaker 01:
But we claim they are making up addresses.

[00:55:23] Speaker 01:
We have dozens of screenshots showing them we want to present this evidence.

[00:55:30] Speaker 01:
The district court basically made findings of fact

[00:55:34] Speaker 01:
based on no evidence instead of looking at the allocation of the complaint.

[00:55:39] Speaker 07:
In the eggball world, did it not occur to you to include that with your complaint?

[00:55:49] Speaker 07:
Come on.

[00:55:49] Speaker 00:
Your Honor, I generally do not include detailed evidence in the complaint.

[00:55:56] Speaker 07:
For example, in a complaint, for example, we're saying they flat out made up an address.

[00:56:02] Speaker 07:
Here we're attaching

[00:56:04] Speaker 07:
to our complaint examples of that.

[00:56:08] Speaker 01:
I suppose we could have done it, but we thought it was sufficient to merely allege that they have false addresses and we are prepared to present proof.

[00:56:19] Speaker 01:
But yes, I suppose we could have added evidence, but I have to say I have not generally included a lot of evidence in a complaint.

[00:56:31] Speaker 01:
I went to law school a long time ago, and they explained notice pleading to me.

[00:56:35] Speaker 07:
It's not the same, in case you missed it.

[00:56:38] Speaker 02:
But your complaint says that these businesses have tricked Google into displaying them as physical locations.

[00:56:50] Speaker 02:
Tricked.

[00:56:51] Speaker 02:
So that must be they must have done something that tricked Google into doing that.

[00:56:58] Speaker 02:
Not just that Google made it up on its own, but that they did something to trick them.

[00:57:02] Speaker 02:
And I guess I had understood this trick being something like the statement, we're in the neighborhood on their website, or we're in the Washington area, or we're in a 202 telephone number or something like that.

[00:57:17] Speaker 02:
Is there some other trick?

[00:57:19] Speaker 01:
I don't know what it is.

[00:57:20] Speaker 01:
We believe Google and the others are publishing these false addresses, false locations to induce consumers to either click them, which results in revenue, or call them.

[00:57:32] Speaker 02:
I understand, but what is the meaning of the sentence in your complaint that says these businesses have tricked Google into displaying them as physical stores in their neighborhoods?

[00:57:42] Speaker 02:
What did you mean by trade?

[00:57:44] Speaker 01:
What we mean by that is they try and present themselves as legitimate, but there's often indicia that they're not.

[00:57:52] Speaker 02:
And the representation of themselves as legitimate.

[00:57:55] Speaker 02:
legitimate are on some false website?

[00:57:58] Speaker 02:
Is that what you're saying?

[00:58:00] Speaker 02:
How have they done that?

[00:58:02] Speaker 01:
They will have a website that does not contain complete information.

[00:58:07] Speaker 01:
And what we are saying is the search engines are adding information, and it's that new information makes part of what is published.

[00:58:17] Speaker 02:
But there must be something in the website that is tricking them.

[00:58:21] Speaker 02:
That's your allegation.

[00:58:23] Speaker 02:
What is it about the website that tricks them?

[00:58:27] Speaker 01:
And on the surface, the websites suggest that they really are a likesmith.

[00:58:33] Speaker 01:
It's that simple.

[00:58:34] Speaker 02:
No, but this is tricking them into displaying them in a particular neighborhood.

[00:58:39] Speaker 01:
Well, we may have used the wrong word.

[00:58:42] Speaker 01:
It's not that there's something there.

[00:58:46] Speaker 01:
But the scammers have the websites in an effort to get consumers to call in and to get Google to pick them up and display them prominently.

[00:58:58] Speaker 01:
And they're not legitimate.

[00:59:01] Speaker 01:
That's the trick.

[00:59:03] Speaker 02:
Okay, further questions?

[00:59:05] Speaker 02:
Okay, thank you very much.

[00:59:07] Speaker 02:
We'll take the matter under submission.