Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

Social Links: Going Back to Cali

As we enter 2024 at Socially Aware, here are a few items we’ve been tracking on the social media and AI fronts from the end of last year and the beginning of this year. The <a href="https://www.nytimes.com/2023/12/08/technology/eu-ai-act-regulation.html?searchResultPosition=1" target="_blank" dir="ltr">European Union voted to enact a new law to harness artificial intelligence</a> (AI). While the new law cites the positives of AI, in the ruling it also warns of potential harms such as “automating jobs, spreading misinformation online and endangering national security” (according to The New York Times). Our colleagues also covered these activities in a recent client alert: <a href="https://www.mofo.com/resources/insights/231214-interpreting-the-eus-provisional-agreement" target="_self">Interpreting the EU’s Political Agreement on the AI Act: What Does It Mean and What’s Next</a>?Meanwhile, the <a href="https://www.ftc.gov/news-events/news/press-releases/2023/12/ftc-staff-report-details-key-takeaways-ai-creative-fields-panel-discussion" target="_self" dir="ltr">Federal Trade Commission</a> issued a report detailing the results of a virtual roundtable of working creative professionals from October 2023 about their concerns regarding generative AI and its potential impact on their work, including data collection without consent, nondisclosure issues, competition with AI, style mimicry, and fake endorsements. ‘Tis the season for copyright infringement claims. <a href="https://www.musicbusinessworldwide.com/mariah-carey-all-i-want-for-christmas-is-you-sony-music-sues-cosmetics-brand-ofra-for-using-music-in-instagram-and-tiktok-posts-without-permission/" target="_self" dir="ltr">Sony Music recently filed a lawsuit against cosmetics brand Ofra</a> for using recordings by Mariah Carey and Britney Spears in social media ads without permission. Here’s the <a href="https://www.musicbusinessworldwide.com/files/2023/11/Sony-OFRA.pdf" target="_blank">full filing</a> in the U.S. District Court for the Southern District of Florida. <a href="https://www.pcmag.com/news/ai-generated-content-and-the-law-are-you-going-to-get-sued" target="_self" dir="ltr">Ownership of AI-generated content continues to raise questions</a> in legal circles about copyright infringement, permission of use, and human-manipulated artifacts generated from AI. PC Magazine’s recent article explores these topics in depth. Finally, New York Attorney General Letitia James <a href="https://ag.ny.gov/press-release/2023/attorney-general-james-secures-100000-manhattan-doctor-who-manipulated-online" target="_self" dir="ltr">shut down a New York orthopedic surgeon’s alleged activity of suppressing negative reviews</a> and artificially inflating positive reviews about his practice on various social media platforms, including ZocDoc, Google, Yelp, Healthgrades, Vitals, Md.com, RateMds.com, and the Better Business Bureau. <a href="https://ag.ny.gov/sites/default/files/settlements-agreements/mohrmann-merged-aods.pdf" target="_blank">James secured $100,000 in penalties</a> against Dr. Mark Mohrmann and his Manhattan-based practice, Highline Orthopaedics.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions.











Anthony Ramirez

Social Links: January 2024

As we enter 2024 at Socially Aware, here are a few items we’ve been  tracking on the social media and AI fronts from the end of last year and the beginning of this year. 

Social Links: January 2024

While generative AI seems to be getting all of the attention these days, the medical field is another area where AI is gaining traction. <a href="https://www.axios.com/2023/11/15/ai-doctor-medical-diagnosis-elsevier-openevidence" target="_blank" dir="ltr">Axios reports about a partnership between Elsevier and OpenEvidence</a> that’s helping doctors use generative AI to use medical research to treat patients in real time.The tentative agreement between SAG-AFTRA and the studios seeks to curb the studios’ use of AI, but <a href="https://www.hollywoodreporter.com/business/business-news/where-sag-aftra-deal-may-miss-ai-protections-1235646988/" target="_blank">there are still concerns from union members</a> about the use and reach of AI in the creative process.The Supreme Court of the United States <a href="https://hls.harvard.edu/today/supreme-court-takes-on-social-media-in-lindke-v-freed-and-oconnor-ratcliff-v-garnier/" target="_blank">recently heard arguments</a> as to whether government officials can block citizens from their personal social media accounts (<a href="https://www.scotusblog.com/case-files/cases/lindke-v-freed/" target="_blank">Lindke v. Freed</a> and <a href="https://www.scotusblog.com/case-files/cases/oconnor-ratcliff-v-garnier/" target="_blank">O’Connor-Ratcliff v. Garnier</a>).On a lighter note, it seems that <a href="https://www.axios.com/2023/10/13/ijbol-meaning-twitter-gen-z-lol-meme" target="_blank">“LOL” is out and “IJBOL” is in</a>. Axios reports that Gen Z now is using the new acronym—unpacked as “I Just Burst Out Laughing”—to describe something funny on social media.

While generative AI seems to be getting all of the attention these days, the medical field is another area where AI is gaining traction. Axios reports about a partnership between Elsevier and OpenEvidence that’s helping doctors use generative AI to use medical research to treat patients in real time.

Social Links

In this second installment of our six-part series examining Section 230, the section of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from the publication and filtering of content created by their users or other third parties, we’ll examine some of the most significant cases that interpreted and applied the statute in the fifteen (or so) years following its enactment.These cases show a general trend of courts interpreting the statutory language broadly: rejecting any distinction between publisher and distributor liability for purposes of the Section 230 safe harbor, giving wide latitude to the types of platforms that qualify as “interactive computer services” and to who counts as a “provider or user” of such services, and clarifying that Section 230 immunity is not limited to defamation claims but rather extends to any claim or cause of action that treats the defendant as a “publisher or speaker” of third-party information.But some of these early cases also imposed limits on the broad scope of Section 230 and planted the analytical seeds that would eventually lead to the more recent trend of cases interpreting the statute less expansively, which we will cover in our third installment of this series.Due to length, we split this second installment into two parts and published the <a href="https://www.sociallyawareblog.com/topics/part-2-a-section-230-27-years-old-and-still-in-the-spotlight-" target="_blank" dir="ltr">first part</a> yesterday, so please start with that if you have not yet seen it.And if you want to catch up on the origins and prehistory of Section 230, you can read the first installment of this series <a href="https://www.sociallyawareblog.com/topics/part-1-section-230-27-years-old-and-still-in-the-spotlight" target="_blank" dir="ltr">here</a>.Ninth Circuit Imposes Important Limit on Broad Scope of Section 230 ImmunityAs we have seen, the early trend in the cases was to interpret the Section 230 immunity broadly. But the 2008 Ninth Circuit case, <a href="https://caselaw.findlaw.com/us-9th-circuit/1466388.html" target="_blank">Fair Housing Council v. Roommates.com</a>, imposed an important limitation on the Section 230 safe harbor. In Roommates.com, the defendant, an online roommate-finding service, required users to choose among predetermined responses to questions that asked for users’ preferences in sex, sexual orientation, and family status of a future roommate, allegedly in violation of the Fair Housing Act.Roommates.com argued that, under Section 230, it could not be held liable for its users’ allegedly discriminatory responses to these questions. The court rejected this argument based on its interpretation of the term “development” as used in Section 230’s definition of “information content provider” (i.e., as set forth in Section 230(f)(3), “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service”):<blockquote dir="ltr">[W]e interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.</blockquote>Based on this interpretation, the court held that, by requiring users to choose among predetermined responses, Roommates.com was affirmatively “inducing third parties to express illegal preferences,” making the site a “co-developer” of the content and, therefore, an information content provider for purposes of Section 230:<blockquote dir="ltr">Roommate created the questions and choice of answers, and designed its website registration process around them. Therefore, Roommate is undoubtedly the “information content provider” as to the questions and can claim no immunity for posting them on its website, or for forcing subscribers to answer them as a condition of using its services.</blockquote>By contrast, the court held that Roommates.com was entitled to Section 230 immunity with respect to user content entered into “neutral tools” on the website, such as a general comment field where users could enter criteria or preferences in a roommate.Interestingly, after much litigation over the Section 230 issue and the en banc holding that Roommates.com was not entitled to immunity with respect to the dropdown menu, Roommates.com did ultimately prevail on the substantive Fair Housing Act claim, with the Ninth Circuit holding in 2012 that Roommates.com had not acted illegally because roommates who share a home are not covered by the Fair Housing Act.                                               Ninth Circuit Considers Whether Plaintiff’s Claims Treat Defendant as Publisher or Speaker for Purposes of Section 230It is common for plaintiffs in Section 230 cases to argue that their claims do not seek to hold an online platform liable as a publisher or speaker of third-party content and, therefore, are not barred by Section 230. That was plaintiff Cecilia Barnes’s approach in <a href="https://www.eff.org/files/barnes-v-yahoo.pdf" target="_blank" dir="ltr">Barnes v. Yahoo!</a>, a Ninth Circuit case from 2009.Barnes’ ex-boyfriend created several fake and unauthorized Yahoo profiles of Barnes with nude photographs of her as well as her personal contact information. He also pretended to be Barnes in Yahoo chat rooms and directed men to the falsified profiles, which resulted in Barnes receiving solicitations online, by phone, and from in-person visits to her office.Barnes made several requests to Yahoo to remove the fake profiles, but her efforts were unsuccessful. Eventually, a Yahoo representative contacted Barnes and told her that he would make sure the fake profiles were removed. However, the profiles remained on Yahoo’s website for another two months before they were finally removed.Barnes sued Yahoo alleging what the Ninth Circuit construed as two claims under Oregon law: first, a tort claim that Yahoo acted negligently when it failed to remove the fake profiles after having said that it would do so; and second, a claim for promissory estoppel based on Yahoo’s alleged unfulfilled promise to remove the profiles.The district court held that, under Section 230, Yahoo could not be held liable for the fake profiles and dismissed Barnes’s claims. On appeal, the Ninth Circuit agreed with the district court with respect to Barnes’s negligence claim, despite Barnes’s argument that “this tort claim would not treat Yahoo as a publisher . . . but rather as one who undertook to perform a service and did it negligently.”Rejecting this argument, the court held that “a plaintiff cannot sue someone for publishing third-party content simply by changing the name of the theory from defamation to negligence. Nor can he or she escape section 230(c) by labeling as a ‘negligent undertaking’ an action that is quintessentially that of a publisher.” The principle that Section 230 immunizes publishing conduct—i.e., “any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online”—regardless of the specific cause of action is an important one, as we will see in subsequent cases.The Ninth Circuit declined, however, to apply this principle to Barnes’s promissory estoppel claim based on the Yahoo representative’s promise to remove the fake profiles. The distinction, according to the court, was that “[c]ontract liability here would come not from Yahoo’s publishing conduct, but from Yahoo’s manifest intention to be legally obligated to do something, which happens to be removal of material from publication.” In other words, according to the court, Barnes’s promissory estoppel claim does not target Yahoo’s failure to remove the fake profiles per se (which would constitute publishing conduct within the scope of Section 230), but rather Yahoo’s unfulfilled promise to remove the fake profiles. Therefore, the court held, “insofar as Barnes alleges a breach of contract claim under the theory of promissory estoppel, subsection 230(c)(1) of the Act does not preclude her cause of action.”Courts Reach Different Conclusions Regarding Whether Section 230 Applies to Website That Encouraged Posting of Defamatory ContentIn 2012, a pair of district court decisions based on similar facts split on whether defendant TheDirty.com, a gossip website, qualified for immunity under Section 230. The website invited users to “submit dirt” about themselves or others via a submission form requesting the basics of the “dirt,” with fields for “what’s happening” and “who, what, when, where, why,” and a link for users to upload photographs. Website operator Nik Richie then reposted the content, sometimes adding his own comments. Unsurprisingly, unhappy subjects of the gossip postings <a href="http://blog.ericgoldman.org/archives/2011/08/thedirty_defeat_1.htm" target="_blank" dir="ltr">have sued</a> Richie and his company <a href="http://blog.ericgoldman.org/archives/2011/06/thedirty_defeat.htm" target="_blank">on numerous occasions</a>. In one case, Jones v. Dirty World Entertainment Recordings, LLC, in the Eastern District of Kentucky, former teacher and Cincinnati Bengals cheerleader Sarah Jones brought defamation and other state law claims related to two user-submitted posts showing her photo and stating that she had sex with players and contracted sexually transmitted diseases. The posts included Jones’s picture and statements regarding her sex partners, as well as allegations that she had sexually transmitted diseases. Richie added a one-line comment— “why are all high school teachers freaks in the sack?”—and published the posts.Richie moved for judgment as a matter of law on grounds that Section 230 gave him immunity as the “provider of an interactive computer service” because, he argued, the defamatory content originated with a user of the site and not Richie, though he had added his own comments. The court denied the motion, citing “the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie” as leading to its conclusion that Richie “specifically encouraged development of what is offensive about the content” and thereby lost immunity under Section 230.In the second of the two cases, <a href="https://digitalcommons.law.scu.edu/historical/16/" target="_blank">S.C. v. Dirty World, LLC</a>, in the Western District of Missouri, the court held that Richie and TheDirty.com did qualify for Section 230 immunity on facts similar to those in Jones. The plaintiff in S.C. brought suit based on a user-generated post on TheDirty.com that showed her picture along with a description alleging that she had relations with the user’s boyfriend and attempted to do so with the user’s son. Richie published the post, adding a comment about the plaintiff’s appearance. The court explained that, because a third party authored the allegedly defamatory content, CDA immunity turned on whether TheDirty “developed” the content by having “materially contribute[d] to [its] alleged illegality.” The court held that the defendants did not materially contribute to the post’s alleged illegality because the defendants never instructed or requested the third party to submit the post at issue, “did nothing to specifically induce it,” and did not add to or substantively alter the post before publishing it on the site.Turning back to Jones, after a mistrial and a second trial that resulted in a verdict in favor of Jones for $338,000 in damages, the <a href="http://www.opn.ca6.uscourts.gov/opinions.pdf/14a0125p-06.pdf" target="_blank" dir="ltr">Sixth Circuit</a> took up Dirty World’s appeal. The Sixth Circuit noted that Section 230 applies “only to the extent that an interactive computer service provider is not also the information content provider of the content at issue,” and that “a website may be immune from liability for some of the third-party content it publishes but be subject to liability for the content that it is responsible for as a creator or developer.”On appeal, Dirty World and Richie argued that the district court erred when it held that “a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a ‘creator’ or ‘developer’ of that content and is not entitled to immunity.” The Sixth Circuit agreed that the district court’s definition of “development” was incorrect, and instead adopted the material contribution test from Roommates.com:<blockquote dir="ltr">Consistent with our sister circuits, we adopt the material contribution test to determine whether a website operator is “responsible, in whole or in part, for the creation or development of [allegedly tortious] information.”</blockquote>The court went on to note that the district court’s encouragement test “would inflate the meaning of ‘development’ to the point of eclipsing the immunity from publisher-liability that Congress established,” given that many websites actively encourage users to post particular types of content, some of which will be unwelcome to others.Applying the material contribution test, the court held that, “Richie and Dirty World cannot be found to have materially contributed to the defamatory content . . . simply because those posts were selected for publication, . . . [n]or can they be found to have materially contributed to the defamatory content through the decision not to remove the posts.” The court distinguished Roommates.com because “the website that Richie operated did not require users to post illegal or actionable content as a condition of use.” Finally, the court held that, although Richie was clearly an information content provider with respect to his own commentary that was added to the posts, that commentary “although absurd, did not materially contribute to the defamatory content” of the posts. Accordingly, Dirty World and Richie were entitled to immunity under Section 230.***Please look out for installment number three of this six-part series, where we will examine how the tide began to turn against expansive interpretations of Section 230, with courts becoming increasingly willing to reward plaintiffs’ efforts to find chinks in the safe harbor’s armor.

In this second installment of our six-part series examining Section 230, the section of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from the publication and filtering of content created by their users or other third parties, we’ll examine some of the most significant cases that interpreted and applied the statute in the fifteen (or so) years following its enactment.

PART 2(b) – Section 230: 27 Years Old and Still in the Spotlight

In this second installment of our six-part series examining Section 230, the section of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from the publication and filtering of content created by their users or other third parties, we’ll examine some of the most significant cases that interpreted and applied the statute in the fifteen (or so) years following its enactment.These cases show a general trend of courts interpreting the statutory language broadly: rejecting any distinction between publisher and distributor liability for purposes of the Section 230 safe harbor, giving wide latitude to the types of platforms that qualify as “interactive computer services” and to who counts as a “provider or user” of such services, and clarifying that Section 230 immunity is not limited to defamation claims but rather extends to any claim or cause of action that treats the defendant as a “publisher or speaker” of third-party information.But some of these early cases also imposed limits on the broad scope of Section 230 and planted the analytical seeds that would eventually lead to the more recent trend of cases interpreting the statute less expansively, which we will cover in our third installment of this series.Due to length, we are publishing this second installment in two parts, so please keep an eye out for part two tomorrow.If you want to catch up on the origins and prehistory of Section 230, you can read our first installment <a href="https://www.sociallyawareblog.com/topics/part-1-section-230-27-years-old-and-still-in-the-spotlight" target="_self" dir="ltr">here</a>.A Landmark Case That Established the Broad Parameters of the Section 230 Safe HarborThe first major case to interpret Section 230 following its enactment in 1996 was <a href="https://firstamendment.mtsu.edu/article/zeran-v-america-online-inc-4th-cir-1997/">Zeran v. AOL</a> in 1997. In Zeran, an anonymous post on an AOL bulletin board advertised the sale of t-shirts with slogans glorifying the <a href="https://en.wikipedia.org/wiki/Oklahoma_City_bombing" target="_blank" dir="ltr">Oklahoma City bombing</a> (for those too young to remember, this was the domestic terrorist truck bombing of a federal office building in Oklahoma City that killed 168 people, including many children in a day care center). The t-shirts displayed highly offensive slogans such as “Finally a day care center that keeps the kids quiet ‒ Oklahoma 1995.”The post instructed readers to contact plaintiff Kenneth Zeran and listed his home phone number. Zeran, in fact, had nothing to do with the post and apparently was randomly targeted for this prank. Zeran began receiving threatening calls. AOL removed the post at Zeran’s request, but similar posts appeared. Less than a week after the initial post, Zeran was receiving threatening calls every two minutes and his house was put under protective surveillance.Zeran sued AOL, alleging that it was negligent in failing to adequately respond to the fake posts after becoming aware that they were fraudulent. AOL argued that it was protected by Section 230. Citing CompuServe and Prodigy (as discussed in <a href="https://www.sociallyawareblog.com/topics/part-1-section-230-27-years-old-and-still-in-the-spotlight" target="_self">Part 1</a>), Zeran argued that AOL was a distributor of information (like a bookstore), rather than a publisher (like a newspaper), and thus was not protected by Section 230. As readers will recall from Part 1, Section 230 immunizes platforms from being treated as a “publisher or speaker” of third-party content, but the statute does not expressly address liability for distributing such content.The court rejected this distinction between distributors and publishers, holding that Section 230 provided immunity for both the distribution and publication of content, and that AOL was therefore immune from liability for the third-party bulletin board posts. Today, more than 25 years later, the court’s holding in Zeran has never been rejected in a precedential opinion and has been adopted by every federal circuit court that has considered it. It’s not an overstatement to say that, at least from a legal point of view, the Fourth Circuit’s broad interpretation of Section 230 in this case was instrumental to the development of the commercial Internet in its early days.For many years following Zeran, the general trend in the cases was to interpret Section 230 broadly and apply the safe harbor to a wide variety of defendants in an equally wide variety of circumstances.Immunity for AOL in a Defamation Suit: Under Section 230, Online Is DifferentIn <a href="https://www.eff.org/files/blumenthal-v-drudge.pdf" target="_blank" dir="ltr">Blumenthal v. Drudge</a>, a 1998 case in the District Court for the District of Columbia, Sidney Blumenthal, then an adviser to President Bill Clinton, and his wife Jacqueline Blumenthal sued Matt Drudge and AOL for defamation and libel, based on Drudge’s article describing Blumenthal’s alleged history of spousal abuse. The article appeared in the Drudge Report, Drudge’s eponymous news commentary and political gossip site, and was also published on AOL pursuant to a licensing arrangement between AOL and Drudge.Immediately after the Blumenthals filed the claim, Drudge issued a retraction and public apology, but the Blumenthals proceeded with the suit. The court granted summary judgment to AOL, holding that it was immune from liability under Section 230. The court interpreted the statute broadly and held that AOL was not a publisher or speaker of Drudge’s article, even though it paid him and promoted his column on its website (this aspect of the court’s analysis has been <a href="https://cyber.harvard.edu/columbia/masur.pdf" target="_blank" dir="ltr">criticized</a>).The court noted that, “[i]n recognition of the speed with which information may be disseminated and the near impossibility of regulating information content, Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others.” As in Zeran, the court also rejected the Blumenthal’s argument that AOL should be held liable as a distributor, since Section 230 made no distinction between publishers and distributors.Blumenthal thus demonstrates that, from the beginning, courts have recognized that Section 230 represented a radical break from traditional defamation law: under Section 230, online really is different.Ninth Circuit Holds that Section 230 Immunity Applies to Publication of an Allegedly Defamatory EmailIn 2003, the Ninth Circuit held in <a href="https://www.eff.org/files/batzel-v-smith.pdf" target="_blank" dir="ltr">Batzel v. Smith</a> that Section 230 immunity extended to a museum administrator who selected, edited, and published on the museum’s Listserv and website an email he had received claiming that plaintiff Ellen Batzel possessed paintings looted by the Nazis during WWII.The case arose after Robert Smith, a handyman who was working for Batzel, sent an email to Ton Cremers, the director of Amsterdam’s famous Rijksmuseum, in which Smith accused Batzel of owning art stolen by the Nazis and being a descendant of Heinrich Himmler. After making a few minor editorial adjustments to Smith’s email, Cremers sent it to the museum’s email distribution list and published it on the website without Smith’s consent or knowledge. Batzel learned of the email and contacted Cremers, who in turn contacted Smith for clarification. Smith asserted that his claims were correct but said he never would have sent the email had he known it was going to be published. Batzel claimed her reputation had been injured by the publication and sued Smith, Cremers, and the Netherlands Museum Association (and other related parties).The court first examined whether the museum Listserv and website qualified as “provider[s] or user[s] of an interactive computer service” for purposes of Section 230. The Ninth Circuit interpreted the statutory language broadly to include the Listserv and website, rejecting the district court’s conclusion that only services that provide access to the Internet as a whole qualify as interactive computer services. The court also noted that, regardless of whether the Listserv and website were themselves interactive computer services, Section 230 covers not only providers but also users of interactive computer services, and there was no dispute that the museum network “uses interactive computer services to distribute its on-line mailing and to post the listserv on its website.”The court then went on to consider whether the email as published by Cremers constituted information “provided by another information content provider” under Section 230, and “whether Smith was the sole content provider of his e-mail, or whether Cremers can also be considered to have ‘creat[ed]’ or ‘develop[ed]’ Smith’s e-mail message forwarded to the listserv.” The court determined that Cremers’ minor edits to the email did not rise to the level of “development,” nor did the fact that Cremers chose to forward the email to the Listserv undermine Section 230 immunity: “the exclusion of ‘publisher’ liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message.”Interestingly, the court’s analysis did not end there, due to the fact that Smith claimed he never intended his email to be published. The court noted that “[t]he question thus becomes whether Smith can be said to have ‘provided’ his e-mail in the sense intended” by Section 230’s reference to information “provided by” another information content provider. If Smith never intended his email to be published on the Internet, then Cremers’ decision to forward it to the Listserv would be analogous to clipping an article from a magazine and publishing it online. That is not what Section 230 was intended to cover.Ultimately, the court determined that Section 230 immunity applies if a provider or user of an online platform reasonably believed under the circumstances that a third party provided the material at issue for publication on the Internet. The court remanded this issue to the district court.Ninth Circuit Holds that Section 230 Provides Immunity for Fake Dating ProfileIn <a href="https://www.eff.org/files/carafano-v-metrosplash.pdf" target="_blank">Carafano v. Metrosplash</a>, a Ninth Circuit case from 2003, a man in Berlin, Germany created a fake profile on Matchmaker.com, masquerading as actress Christianne Carafano (whose stage name is Chase Masterson). The imposter also included Carafano’s home address and telephone number. Matchmaker.com initially refused to remove the profile even after Masterson had received threatening and sexually explicit voicemail messages and a fax, but did eventually remove the profile. Carafano sued the company in California for defamation, misappropriation of the right of publicity, invasion of privacy, and negligence.The district court rejected Matchmaker.com’s Section 230 defense due to the fact that the site’s profile creation process required users to answer a lengthy questionnaire. The district court determined that this made Matchmaker.com partly responsible for the content of the fake profile and, therefore, an “information content provider” in Section 230 terms. The Ninth Circuit reversed the district court and held that Matchmaker.com was entitled to Section 230 immunity as an interactive service provider, and was not an information content provider with respect to the fake profile, notwithstanding the questionnaire.In its opinion, the court stated:<blockquote dir="ltr">Under § 230(c), therefore, so long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process…. The fact that some of the content was formulated in response to Matchmaker’s questionnaire does not alter this conclusion. Doubtless, the questionnaire facilitated the expression of information by individual users. However, the selection of the content was left exclusively to the user. The actual profile “information” consisted of the particular options chosen and the additional essay answers provided. Matchmaker was not responsible, even in part, for associating certain multiple choice responses with a set of physical characteristics, a group of essay answers, and a photograph. Matchmaker cannot be considered an “information content provider” under the statute because no profile has any content until a user actively creates it.</blockquote>California Supreme Court Addresses Publisher/Distributor Distinction as well as Application of Section 230 to UsersThe 2006 California Supreme Court case, <a href="https://www.eff.org/files/barrett-v-rosenthal.pdf" target="_blank" dir="ltr">Barrett v. Rosenthal</a>, addressed two important issues: first, whether Section 230 confers immunity with respect to both publisher and distributor liability (i.e., the same question at issue in Zeran as discussed above); and second, how Section 230 applies to users (as distinct from providers) of online platforms.The case arose from allegedly defamatory statements contained in a letter written by Tim Bolen, a publicist for alternative medicine practitioners including the late Hulda Clark. Bolen’s letter attacked plaintiffs Stephen Barrett and Terry Polevoy, two physicians who operated websites devoted to exposing health frauds. Defendant Ilena Rosenthal reposted Bolen’s letter on two alternative medicine newsgroup sites. The plaintiffs sued, alleging that Rosenthal committed libel by maliciously distributing defamatory statements impugning their character and competence, and disparaging their efforts to combat fraud, even after the plaintiffs had notified Rosenthal that the statements were false and defamatory.The trial court dismissed the defamation claims against Rosenthal, but the California Court of Appeal reversed, holding that Section 230 immunized only publishers, not distributors, of defamatory information. The California Supreme Court then reversed the Court of Appeal, citing Zeran for the proposition that “the publisher/distributor distinction makes no difference for purposes of section 230 immunity” and that “[s]ubjecting service providers to notice liability would defeat ‘the dual purposes’ of section 230, by encouraging providers to restrict speech and abstain from self-regulation.”Barrett also addressed the fact that Rosenthal was a user of the newsgroup sites where she posted Bolen’s letter, rather than the operator of those sites. Although the defendants in most Section 230 cases are platform operators rather than platform users, Section 230(c)(1) says that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (emphasis added).The court in Barrett noted that “user” is not defined in the statute, and that users such as Rosenthal “are situated differently from institutional service providers with regard to some of the principal policy considerations” that underlie Section 230. Among other things, “individuals do not face the massive volume of third-party postings that providers encounter, [so] [s]elf-regulation is a far less challenging enterprise for them,” and “[u]sers are more likely than service providers to actively engage in malicious propagation of defamatory or other offensive material.”Nonetheless, the court concluded that “[t]he standard rules of statutory construction . . . yield an unambiguous result,” namely that “‘[u]ser’ plainly refers to someone who uses something, and the statutory context makes it clear that Congress simply meant someone who uses an interactive computer service.” Because Rosenthal used the Internet to gain access to newsgroups where she posted Bolen’s allegedly defamatory letter, the court held she was a “user” under Section 230 and entitled to the benefit of the safe harbor. The court also held that, for purposes of Section 230, there was no distinction between “active” and “passive” users, and that “[b]y declaring that no ‘user’ may be treated as a ‘publisher’ of third party content, Congress has comprehensively immunized republication by individual Internet users.”

PART 2(a) – Section 230: 27 Years Old and Still in the Spotlight

You can’t seem to turn on the TV, listen to the radio, or open a newspaper these days without hearing about the merits and potential risks of AI—and the federal government is paying attention. Here are some recent examples:<ul><li dir="ltr">In September, the Review Board of the Copyright Office affirmed—for a second time—the Registration Program’s denial of registration for “Théâtre D’opéra Spatial,” a work created using generative AI tools.</li><li dir="ltr">The Copyright Office issued a notice of inquiry and request for comment on a variety of GAI-related questions. Initial written comments are due by 11:59pm ET on October 30, 2023.</li><li dir="ltr">During a recent hearing before the House Oversight and Accountability subcommittee, the heads of various federal agencies testified on how they are using AI.</li><li dir="ltr">Tech leaders and lawmakers also met to discuss the regulation of AI.</li><li dir="ltr">The Protect Elections from Deceptive AI Act, which would amend the Federal Election Campaign Act of 1971, was introduced in the Senate last week with bipartisan support. If passed, the law would ban the distribution of certain deceptive AI-generated content in election ads.</li><li dir="ltr">The White House continues to push to secure voluntary commitments from leading AI companies on the development of trustworthy AI.</li><li dir="ltr">The Senate Judiciary Committee held hearings on AI during the spring and summer. The first hearing in May focused on “Artificial Intelligence and Intellectual Property: Part I—Interoperability of AI and Copyright Law,” and the second hearing in July centered on “Artificial Intelligence and Intellectual Property – Part II: Copyright.”</li></ul>

Artificial Intelligence and Intellectual Property: Federal Government Interest in AI Continues.

Artificial Intelligence and Intellectual Property: Federal Government Interest in AI Continues.

You can’t seem to turn on the TV, listen to the radio, or open a newspaper these days without hearing about the merits and potential risks of AI—and the federal government is paying attention. 

A federal district court in Delaware has issued a summary judgment ruling in Thomson Reuters Enterprise Centre GmbH et al v. ROSS Intelligence Inc. The decision addresses several important issues:(1) copyright preemption defenses against terms of use violations;(2) whether a plaintiff who has registered the copyright in a compilation can allege separate infringement claims for each individual item within that compilation if the plaintiff has not registered the copyright in the individual items; and(3) the big open question regarding generative AI: whether reproducing third-party copyrighted materials to train a generative AI model constitutes fair use, at least in some cases (and how the Supreme Court’s decision in Warhol v. Goldsmith affects this analysis).Here, we focus on the last of these three issues.Read our <a href="https://www.mofo.com/resources/insights/231020-reuters-v-ross-district-court" target="_blank">full client alert</a> to learn more.

Reuters v. ROSS: District Court First to Consider Whether Training Generative AI Model Is Fair Use

Reuters v. ROSS: District Court First to Consider Whether Training Generative AI Model Is Fair Use

A federal district court in Delaware has issued a summary judgment ruling in Thomson Reuters Enterprise Centre GmbH et al v. ROSS Intelligence Inc.

In <a href="https://law.justia.com/cases/federal/district-courts/california/candce/3:2023cv00686/408431/50/" target="_blank">Jaime Rogozinski v. Reddit Inc</a>, U.S. District Judge Maxine M. Chesney for the Northern District of California dismissed WALLSTREETBETS Reddit community founder Jamie Rogozinski’s claims against Reddit for trademark infringement and dilution as well as various state law claims.Rogozinski established WALLSTREETBETS in 2012 and served as its community moderator. The popular interest-specific subreddit community’s purpose is to inspire average Americans with the notion that they can succeed financially in the stock market.In 2020, Rogozinski filed an application to register the trademark WALLSTREETBETS. He also posted a link in the forum’s sidebar to his book, and later posted a link to a live e-stock trading competition ran by a company he owned. In response, Reddit suspended Rogozinski’s account for seven days and prohibited him from moderating forums on Reddit. Reddit also filed its own application to register the WALLSTREETBETS mark.Rogozinski then sued Reddit for trademark infringement, trademark dilution, violation of his right of publicity, breach of contract, violation of the duty of good faith and fair dealing, and unfair competition.In examining Rogozinski’s trademark claims, the court concluded that Reddit, rather than Rogozinski, was the owner of the WALLSTREETBETS trademark. Rogozinski argued that he had created the name of the forum and that, through his moderation of the forum, members of the public had come to associate him with WALLSTREETBETS. The court held, however, that these facts did not mean that Rogozinski owned the WALLSTREETBETS trademark. Rather, Reddit owned the mark because Reddit was the party that used the mark in commerce in connection with operation of the WALLSTREETBETS. This holding spelled the end of Rogozinski’s trademark claims.The court also held that Section 230 barred Rogozinski’s state law claims. As in many Section 230 cases, the primary issue was whether Rogozinski’s claims sought to hold Reddit liable as a publisher of someone else’s content. The court agreed with Reddit’s argument that content moderation—i.e., making decisions about what content and which users are permitted on the site—does qualify as publisher activity, holding that Rogozinski’s state law claims “seek to hold Reddit liable for publisher conduct, specifically, for either suspending Rogozinski from the r/WallStreetBets subreddit, banning him, and/or allowing the subreddit to continue to operate without him.” Accordingly, the court dismissed most of Rogozinski’s state law claims on Section 230 grounds.The court held that Section 230 did not bar Rogozinski’s one remaining claim for unfair competition under the California Unfair Competition Law, which asserted that Reddit’s practice of claiming trademark rights in the names of subreddits was an unfair trade practice. However, the court dismissed the unfair competition claim for lack of standing.This case is yet another in a recent flurry of cases concerning social media account ownership and control. Recently, we reported on former Bang Energy CEO Jack Owoc’s <a href="https://www.sociallyawareblog.com/topics/social-links-social-media-account-ownership-once-again-in-the-spotlight" target="_blank">claims to own Bang’s social media accounts</a>.

WallStreetBets Founder Loses Trademark Suit Against Reddit

In Jaime Rogozinski v. Reddit Inc, U.S. District Judge Maxine M. Chesney for the Northern District of California dismissed WALLSTREETBETS Reddit community founder Jamie Rogozinski’s claims against Reddit for trademark infringement and dilution as well as various state law claims.

WallStreetBets Founder Loses Trademark Suit Against Reddit

In this age of social media and texting, we use a plethora of shorthand visual and typographic icons to express a range of responses or reactions to posts or texts: a heart to indicate love, a laughing face or an “LOL” to indicate humor, a “: )” to indicate general pleasure.But be careful the next time you use the thumbs-up emoji, especially in a business context. It could be interpreted as the equivalent of a signature and indicate to the recipient that you agree to a contractual exchange.In July 2023, a Canadian court in Saskatchewan ruled as such, in South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII). The case involved a text exchange between a farmer, Chris Achter, who was to sell 87 metric tons of flax to a buyer, Kent Mickleborough.Mickleborough signed the contract and texted a photo of it to Achter with the accompanying text “Please confirm flax contract.” Achter responded with a thumbs-up emoji, which to Mickleborough indicated that Achter was agreeing to the contract.Justice T.J. Keene of the Court of King’s Bench for Saskatchewan ruled that Achter breached what Keene deemed as a valid contract when Achter failed to deliver the flax to Mickleborough.Keene wrote in his ruling that “This court readily acknowledges that a 👍 emoji is a nontraditional means to ‘sign’ a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a ‘signature’ — to identify the signator [and] to convey Achter’s acceptance of the flax contract.” Justice Keene ordered Mr. Achter to pay damages of CA$82,200 (approximately US$61,000).As The New York Times reported, “In coming to his decision, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: ‘used to express assent, approval or encouragement in digital communications, especially in Western cultures.’”In the United States, there have been a few cases to date that interpret the thumbs-up emoji, as Eric Goldman writes in his Technology & Marketing Law Blog about this Canadian case. One is Lightstone v. Zinnex, involving the sale of personal protective equipment during the pandemic, and Bardales v. Lamothe, involving the estranged parents of a child and decisions about where the child should live. (On his blog, Goldman lists 37 U.S. court opinions that reference the thumbs-up emoji.)Here at Socially Aware we’ll be keeping a close eye on the legal developments surrounding the implications of icons, emojis, and other design and display-related expressions that may have legal consequences.

In this age of social media and texting, we use a plethora of shorthand visual and typographic icons to express a range of responses or reactions to posts or texts: a heart to indicate love, a laughing face or an “LOL” to indicate humor, a “: )” to indicate general pleasure.

Be Careful What You Click for: A Canadian Court Rules that a Thumbs-Up Emoji Indicates a Binding Contractual Agreement