UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS _________________________________________ UNIVERSAL COMMUNICATION SYSTEMS ) INC., a Nevada Corporation; MICHAEL J. ) ZWEBNER, individually; and ) others similarly situated ) Plaintiffs, ) Civil Action ) NO. 05-10435-REK v. ) CONSOLIDATED WITH ) NO. 05-11172-REK LYCOS, INC. and TERRA LYCOS, INC., d/b/a ) THE LYCOS NETWORK, ) Defendants. ) __________________________________________) _________________________________________ UNIVERSAL COMMUNICATION SYSTEMS ) INC., a Nevada Corporation; MICHAEL J. ), ZWEBNER, individually; and ), CONSOLIDATED PROCEEDINGS others similarly situated ) Plaintiffs, ) Civil Action ) NO. 05-11172-REK v. ) LEAD CASE ) LYCOS, INC., d/b/a THE LYCOS ) NETWORK and TERRA NETWORKS, S.A. , ) JOHN DOE #1 aka “the worm06” ) JOHN DOE #2 aka “no_insiders” ) JOHN DOE #3 aka “the worm06A” ) JOHN DOE #4 aka “65175R” ) JOHN DOE #5 aka “Henry_Johnson123” & ) JOHN DOE #6 aka “quondo1” ) JOHN DOE #7 aka “Tobias95” ) JOHN DOE #8 aka “CrawleySmith” ) Defendants. ) __________________________________________) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT LYCOS INC.’S MOTION TO DISMISS THE COMPLAINTS Introduction In these two consolidated cases, Plaintiffs Michael J. Zwebner (“Zwebner”) and his company, Universal Communication Systems, Inc., (“Universal”) assert a variety of claims against Defendant Lycos, Inc. (“Lycos”) based upon statements made by third parties on the “Raging Bull” website, an Internet message board. As explained below, each and every one of the Plaintiffs’ claims for relief against Lycos is meritless and should be dismissed with prejudice. First and foremost, the Plaintiffs’ claims are barred by Section 230 of the Federal Communications Decency Act, 47 U.S.C. § 230 (hereinafter “Section 230”), which immunizes Lycos from any and all liability arising from statements posted by third parties on Internet message boards. See, e.g., Green v. America Online (AOL), 318 F.3d 465, 470 (3d Cir. 2003); accord Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). Indeed, Plaintiffs effort to recast their claims as trademark claims in order to avoid the application of Section 230 is invalid under controlling First Circuit precedent. See L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 32-33 (1st Cir. 1987). Second, even if Plaintiffs’ claims were not barred by Section 230, they are precluded by the broad release set forth in the Lycos Subscriber Agreement, upon which the Plaintiffs purport to sue. Under that Release, Plaintiffs are precluded from asserting against Lycos any of the claims set forth in these consolidated proceedings. Finally, Plaintiffs’ various claims for relief suffer from numerous other defects that require dismissal. For example, Plaintiffs’ attempts to assert private rights of action under either 1 47 U.S.C. § 223 and Fla. Stat. § 784.048 are improper as neither of those criminal statutes authorizes a private right of action for civil litigants. And Plaintiffs’ attempt to assert a claim against Lycos under Mass. Gen L. Ch. 93A is invalid, as that claim is based upon a supposed breach of contract.. See, e.g., Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85 (1979). I. SUMMARY OF FACTS Plaintiff Universal is a Nevada corporation with offices in Miami Beach, Florida. See Complaint in Case No. 05-11172-REK (hereinafter the “Lead Complaint”) ¶ 11; see also Complaint in Case No. 05-10435-REK (hereinafter the “Initial Complaint”) ¶ 9. Universal is a public company listed on NASDAQ. See Lead Complaint ¶ 11; Initial Complaint ¶ 9. Its ticker symbol is “UCSY.” See Lead Complaint ¶ 11; Initial Complaint ¶ 9. Plaintiff Zwebner is alleged to be Universal’s Chairman of the Board of Directors and Chief Executive Officer. See Lead Complaint ¶ 12; Initial Complaint ¶ 10. Defendant Lycos is a Massachusetts-based corporation headquartered in Waltham, Massachusetts. Lycos operates a variety of Internet websites, including a website entitled “Raging Bull.” See Lead Complaint ¶ 15; Initial Complaint ¶ 12; see generally www.ragingbull.com. The Raging Bull website provides business information to Lycos subscribers. See Lead Complaint ¶ 22; Initial Complaint ¶ 18. The website also contains message boards devoted to discussions about various publicly traded companies, including one devoted to discussions regarding Universal. See Lead Complaint ¶¶ 22-24; Initial Complaint ¶¶ 18, 21, 27 In order to access the Raging Bull website and to participate in discussions on the various Raging Bull message boards, parties must complete an on-line registration process. See Initial 2 Complaint ¶ 19. The registration process requires each subscriber to review and accept certain Terms and Conditions (the “Subscriber Agreement”), a copy of which is attached to the Initial Complaint as Exhibit 1. Id. ¶ 19-20 & Exhibit 1. Once this process is completed, a subscriber is allowed to access and participate in discussions on Raging Bull’s various message boards, including the “UCSY” message board. Subscribers typically use a “screen name” or an alias that conceals the subscriber’s true identity and allows for anonymous posting. Id. ¶ 20. The Subscriber Agreement states explicitly that, by using Lycos’ products and services (including the Raging Bull website), users agree “to be bound by, and to comply with” the Subscriber Agreement. See Initial Complaint, Exhibit 1 at ¶ 1. Among other things, the Subscriber Agreement sets forth conditions and restrictions on the use of Lycos websites, establishes standards for member and user conduct, and describes certain prohibited conduct. Exhibit 1 at ¶¶ 2, 6. The Subscriber Agreement states clearly, however, that any enforcement of those standards is left to Lycos’ “sole discretion.” Id. The Subscriber Agreement also states as follows: Much of the information and Content available through . Raging Bull is obtained from, or posted by, third parties. Such third parties are solely responsible for the information or content they may available through . Raging Bull. Lycos does not review or endorse any postings that appear on the . Raging Bull message boards and strongly urges you to read and post on the message boards with caution. Id. ¶ 8. The Subscriber Agreement also contains a specific disclaimer regarding “third party content” explaining that (other than certain generalized screening) Lycos exercises no control over the content on the web pages that it hosts on certain of its message board sites. Id. ¶ 13. Finally, the Subscriber Agreement contains an “Indemnity and Release” clause, which provides, in part, as follows: 3 By using the Lycos Network [or] using the Products and Services . .you are hereby agreeing to release Lycos and its parents, subsidiaries, affiliates, officers, employees, and licensors from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that you may have against them arising out of or in any way related . to the Products or Services or to any disputes regarding use of ideas and/or related materials submitted to Lycos. Id. ¶ 29. Prior to the initiation of these lawsuits, Zwebner reviewed and accepted the terms of the Subscriber Agreement and completed the registration process for the Raging Bull website. Id. ¶ 24. He then began participating on the Raging Bull message board. Id. II. PROCEDURAL HISTORY AND SUMMARY OF ALLEGATIONS Plaintiffs initiated their claims against Lycos in July 2004, when they filed the Initial Complaint in the United States District Court for the Southern District of Florida. See Universal Communications Systems, Inc. v. Lycos, Inc., Case No. 05-21618-CIV-MARTINEZ/Klein (S.D. Fla.). In response to that Initial Complaint, Lycos filed a Motion to Dismiss under Rule 12(b)(6) as well as a Motion to Transfer Venue to the District of Massachusetts. On January 19, 2005, the Southern District of Florida issued a stay on all discovery. That same day, the Plaintiffs filed a second action against Lycos - the Lead Case in this consolidated action. See Universal Communications Systems, Inc. v. Lycos, Inc., Case No. 05-20149-CIV- MORENO/Garber (S.D. Fla.). Because this second lawsuit was based on allegations virtually identical to those set forth in the Initial Complaint,1 Lycos filed another Motion to Dismiss as well as another Motion to Transfer Venue to Massachusetts. 1 Plaintiffs’ filing of duplicative cases against Lycos has continued apace. In addition to these two consolidated actions, Plaintiffs have filed two additional lawsuits against Lycos - each of which is premised on virtually identical allegations about the “Raging Bull” website. See Universal Communications Systems, Inc. v. Lycos, Inc., Case No. 05-20916-CIV-COOKE/Brown (S.D. Fla.) (filed March 31, 2005 and dismissed sua sponte by the Cour4t on April 12, 2005); Universal Communications On February 28, 2005, Judge Jose Martinez of the Southern District of Florida granted Lycos’ first Motion to Transfer Venue and issued an Order transferring the case to this Court. On May 24, 2005, Judge Federico Moreno of the Southern District of Florida issued a similar order transferring the Lead Case to this Court. On July 26, 2005, after a hearing, this Court formally consolidated the two cases. The Court also denied all pending motions (including the Motions to Dismiss without prejudice) and ordered the Defendants to re-file any Motions to Dismiss for hearing on September 28, 2005. A. The Lead