Brief Summary: Eric S. Boorstin, Attorney for Amicus Curiae Apartment Investment and Management Company, requested that CAI join the attached amicus brief.
The following argument is made in the amicus brief:
Short-term rentals bring large numbers of tourists into places that were not designed to accommodate them. Cities and landlords, as well as their residents and tenants, therefore have an interest in setting reasonable short-term rental policies to promote the overall well-being of their communities.
Plaintiffs Airbnb and HomeAway.com seek a regime where they can continue extracting massive profits from their short-term rental booking services while disclaiming any responsibility for the significant costs and burdens their services impose on the community at large. They claim that the Communications Decency Act (CDA), 47 U.S.C. § 230, immunizes them from all liability for brokering short-term rentals that convert residential living spaces into hotel rooms, no matter whether the applicable local regulations or leases permit it.
Plaintiffs are wrong. The CDA was enacted to encourage “Good Samaritan[s]" to address the undesirable third-party content on their websites, not give online business “an all-purpose get-out-of-jail-free card" (Doe v. Internet Brands, Inc., 824 F.3d 846, 853 (9th Cir. 2016)) for all aspects of their business models no matter the terms of relevant state and local laws or contracts that generally govern a community. 47 U.S.C. § 230(c) (2012). The CDA by its terms preempts only claims where a website operator is “treated" as the publisher or speaker of information provided by another, 47 U.S.C. § 230(c)(1), not all claims where third-party content is a but-for cause of a harm, or all claims that might cause a website operator to remove third-party content as a practical matter.
This Court has recognized the limited scope of the CDA, cautioning that it “must be careful not to exceed the scope of the immunity provided by Congress and thus give online businesses an unfair advantage over their real-world counterparts." Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1164 n.15 (9th Cir. 2008). Accordingly, this Court has recognized that claims are not preempted unless they “inherently require[ ] the court to treat the defendant as the 'publisher or speaker' of content provided by another." Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009) (emphases added).
Plaintiffs enter into the contracts at the heart of the short-term rental transaction they facilitate, as well as provide travel support, guarantees, payment processing, rental rate setting, and other related services, which are integral for the transaction's success. For all these services, Plaintiffs collect substantial fees. These are not the activities of a publisher, so regulating these activities does not treat Plaintiffs as publishers. The CDA, therefore, does not preempt the City of Santa Monica's ordinance, or any other attempt to hold Plaintiffs accountable for the rules they violate (such as limitations on short-term rentals in residential lease provisions) with their own conduct in providing short-term rental services.
written by Eric S. Boorstin, Attorney for Amicus Curiae Apartment Investment and Management Company.
Status: August 2019 - Airbnb's Motion for Rehearing Denied
July 2019 – Amicus Brief in Opposition to Petition for a Rehearing and Rehearing En Banc
Homeaway v City of Santa Monica - Order Denying Plaintiffs' Motion for Preliminary Injunction; Granting Motion to File Amicus Brief
CAI Amicus Review Panel: Robert Diamond, Esq., Chair of Amicus Committee, Edmund Allcock, Esq. (MA), Jennifer Loheac, Esq. (GA), and Laurie Poole, Esq. (CA)