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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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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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

Here at Socially Aware we talk a lot about Section 230, the section of the 1996 Communications Decency Act (CDA) that immunizes social media platforms and other online service providers from liability stemming from content created by their users or other third parties. Sometimes referred to as “the 26 words that changed the Internet” and often discussed as one of the <a href="https://www.theatlantic.com/business/archive/2013/09/the-law-that-gave-us-the-modern-internet-and-the-campaign-to-kill-it/279588/" target="_blank" dir="ltr">most important pieces of Internet law</a>, Section 230(c)(1) states “No 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.”Put another way, when online platforms publish content posted by their users, the platforms are exempt from liability arising from that content if they meet the requirements for the Section 230 safe harbor. For example, if a TikTok user posts a defamatory video about another person, that user may be liable for defamation, but Section 230 will generally provide immunity for TikTok.Section 230 has generated significant controversy in recent years and again is making headlines, especially with the intense focus on generative AI and its potential consequences – both positive and negative – for individuals, businesses, governments, and society at large.  This summer, we’re launching a four-part series that will look at the origins of Section 230, examine some of the seminal cases that have interpreted and applied the statute, and explore the numerous legislative and judicial efforts to limit the scope of the law.Section 230: OriginsImagine if TikTok or YouTube were potentially liable for every item of content posted by their users. It would be hard to imagine social media or the Internet as we currently know it existing if that were the case. But that is where we were in the early days of the Internet, based on some early case law that we discuss below. Before getting into the cases, however, it will be helpful to understand how defamation liability for third-party content typically works. Generally speaking, the threshold question is whether the party disseminating that third-party content can exercise editorial discretion in doing so.First, consider the example of a common carrier such as a telephone company or FedEx. When these companies are acting as common carriers, they are generally not liable for the third-party content that they disseminate. They cannot not disseminate the content, after all.By contrast, take a publisher like The New York Times. It does exercise editorial discretion over what it disseminates. It reviews each piece of content it publishes and decides whether to publish it or not. And, as a result, it accepts liability for that decision. If a newspaper or other publisher repeats or otherwise republishes defamatory third-party content—e.g., in an op-ed piece or letter to the editor—the publisher will be subject to liability to the same extent as if it had created the content itself (subject to some nuances that we need not address for present purposes).Somewhere in between we have distributors like bookstores or magazine stands. They exercise some editorial discretion in choosing what books and magazines to sell, so that threshold requirement is met. But, unlike a newspaper, bookstores and magazine stands do not review or read every line of every book and magazine they sell. And they certainly don’t have the ability to go line by line and remove content they disagree with. Therefore, when it comes to distributors (as opposed to publishers), the law generally imposes liability for third-party defamatory statements only if the distributor knew (or constructively knew) of the defamatory statement at issue.Now consider online platforms that host third-party content. In some ways, they act, or can act, more like newspapers. They can create walled gardens, hire moderators, review and take down user posts they don’t like, and deny access to those whose content they don’t want to publish in the first instance. In other ways, at least some are more like the telephone company. They can choose not to hire moderators and review content, and instead simply let users post whatever they want. So, in these ways, they are more like common carriers. In some other ways, though, online platforms are more like bookstores. They distribute lots of third-party content and may, at least for certain kinds of content, exercise editorial discretion in doing so.Given the various functions online platforms can and cannot realistically perform, in the early days of the World Wide Web it was unclear how to think about their liability for the third-party content they published (or distributed). And two early cases that faced this issue came to different conclusions, though both held that they could be liable. One analogized them more to bookstores and the other more to newspapers.Pre-Section 230 CasesIn a 1991 case, <a href="https://law.justia.com/cases/federal/district-courts/FSupp/776/135/2340509/" target="_blank" dir="ltr">Cubby Inc. v. CompuServe Inc.,</a> in the Southern District of New York, Cubby Inc. and Robert Blanchard sued CompuServe for libel, business disparagement, and unfair competition for hosting a forum with content created by Rumorville USA, a daily newsletter that published allegedly defamatory content about a competing online newsletter developed by Blanchard and Cubby Inc. The court held that online service providers were subject to standard defamation law for their hosted content and, although CompuServe did host defamatory content on its forums, CompuServe was merely a distributor, rather than a publisher, of the content. Therefore, CompuServe could only be held liable for defamation if it knew or had reason to know of the defamatory nature of the content. Because Rumorville USA uploaded its newsletter automatically and CompuServe made no effort to review the content on its forums, CompuServe could not be held liable.This holding strongly disincentivized online platforms like CompuServe from reviewing or moderating their users’ content. Put differently, it incentivized platforms to operate more like a telephone company and less like a newspaper with respect to handling of users’ content.Next, we have a New York Supreme Court case, <a href="https://casetext.com/case/stratton-oakmont-inc-v-prodigy-servs" target="_blank" dir="ltr">Stratton Oakmont v. Prodigy Services</a>, from 1995, which made things even more perplexing for online platforms. In this case, a user of Prodigy’s Money Talk bulletin board created a post that claimed that Stratton Oakmont (a securities investment banking firm) and its president committed criminal and fraudulent acts in connection with an IPO. In response, Stratton Oakmont sued Prodigy and the anonymous poster for defamation.The court held that Prodigy was liable as the publisher of the content created by its users, and thus faced the same liability standard faced by traditional newspapers. Specifically, the court found that Prodigy exercised editorial control over the messages on its bulletin boards by posting content guidelines for users, using moderators to enforce the guidelines, and using screening software designed to remove offensive language – in other words, standard content moderation.In terms of incentives, Stratton Oakmont was even worse than Cubby. Based on these cases, online platforms were incentivized to avoid exerting any effort whatsoever to moderate users’ content and try to make their platforms more pleasant. It was this perverse incentive that led directly to the enactment of Section 230, signed into law by President Bill Clinton in 1996.Enactment of Section 230As noted above, Section 230 immunizes online service providers from liability stemming from the publication, removal, and filtering of third-party content. Section 230(c)(1) is the broadest and most powerful section of the CDA and would have protected CompuServe and Prodigy from any liability for their users’ defamatory content, even if the platforms were aware of the content. CDA § 230(c)(1) states that an “interactive computer service provider” cannot be treated as a publisher or speaker of content provided by a separate “information content provider.”But what exactly does this mean and how far does Section 230’s immunity extend? In our next installment, we will look at how courts have interpreted the statute, particularly considering the rise of social media, which did not even exist in its modern form when Section 230 was enacted.

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

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

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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).

Here at Socially Aware we talk a lot about Section 230, the section of the 1996 Communications Decency Act (CDA) that immunizes social media platforms and other online service providers from liability stemming from content created by their users or other third parties. 

PART 1 - Section 230: 27 Years Old and Still in the Spotlight

In May 2023, Steven Schwartz of Levidow, Levidow & Oberman admitted that he used a generative AI (GAI) platform to produce six non-existent court decisions as citations during his representation in a personal injury case against Avianca Airlines. He has <a href="https://storage.courtlistener.com/recap/gov.uscourts.nysd.575368/gov.uscourts.nysd.575368.32.1_1.pdf?utm_source=Sailthru&utm_medium=Newsletter&utm_campaign=Daily-Docket&utm_term=053023" target="_blank">since issued regrets</a> and has thrown himself on the mercy of the court.U.S. District Judge P. Kevin Castel of the Southern District of New York <a href="https://www.cbsnews.com/news/chatgpt-judge-fines-lawyers-who-used-ai/" target="_blank">later fined Schwartz and the firm</a> for what he said were bad faith actions. Judge Castel wrote in his opinion that “Technological advances are commonplace and there is nothing inherently improper about using a reliable artificial intelligence tool for assistance … but <a href="https://www.cbsnews.com/news/texas-judge-bans-chatgpt-court-filing/" target="_blank">existing rules</a> impose a gatekeeping role on attorneys to ensure the accuracy of their filings.”In a concurrent development related to the New York case, Texas Judge Brantley Starr issued a <a href="https://www.txnd.uscourts.gov/judge/judge-brantley-starr" target="_blank">Mandatory Certification Regarding Generative Artificial Intelligence</a> to rein in the growing use of AI technology in legal proceedings.<a href="https://www.reuters.com/legal/transactional/us-judge-orders-lawyers-sign-ai-pledge-warning-they-make-stuff-up-2023-05-31/" target="_blank">In the certification ordering lawyers to sign an AI pledge</a>, Judge Starr said that “All attorneys and pro se litigants appearing before the Court must, together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being.”This situation <a href="https://www.reuters.com/legal/transactional/lawyer-used-chatgpt-cite-bogus-cases-what-are-ethics-2023-05-30/" target="_blank">raises many issues, both legal and ethical</a>, about the growing popularity of GAI platforms in the legal industry, especially around duty of competence, duty of confidentiality, and responsibilities regarding non-lawyer assistance.

In the Crosshairs: The Legal Industry Grapples with the Application and Ethics of AI

In the Crosshairs: The Legal Industry Grapples with the Application and Ethics of AI

In May 2023, Steven Schwartz of Levidow, Levidow & Oberman admitted that he used a generative AI (GAI) platform to produce six non-existent court decisions as citations during his representation in a personal injury 

Social media continues to dominate the headlines this spring, with several high-profile events capturing the media’s, regulators’, and lawmakers’ attention.Jack Owoc, founder and former CEO of Bang Energy (“Bang,” a performance energy beverage), claimed that he retained the rights to control Bang’s social media accounts, namely Instagram, TikTok, and Twitter. Owoc claimed that these accounts were intertwined with his own personal brand and therefore belonged to him.The courts and Vital Pharmaceuticals (“Vital”), Bang’s manufacturer, saw things differently. In March, U.S. Bankruptcy Judge Peter D. Russin for the Southern District of Florida blocked Owoc from the accounts; in April, Owoc was forced to delete disparaging comments he made on his Instagram handle @BangEnergy.CEO about advisers who were trying to sell the bankrupt energy drink maker. (Vital, Bang’s parent company, filed for bankruptcy in October 2020.) In March 2023, Vital removed Owoc as CEO, replacing him with John C. DiDonato.Social media account ownership was a hot topic about a decade ago, with several high-profile cases such as <a href="https://cases.justia.com/federal/district-courts/california/candce/3:2011cv03474/243145/28/0.pdf" target="_blank">PhoneDog v. Kravitz</a>, <a href="https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2011cv05013/382292/30/" target="_blank">Ardis Health, LLC et al. v. Nankivell</a>, <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1153&context=historical" target="_blank">Eagle v. Morgan</a>, and Maremont v. Susan Fredman Design Group LTD,which we discussed here in the 2013 article <a href="https://www.jdsupra.com/legalnews/ownership-of-business-related-social-med-52890">“</a><a href="https://www.jdsupra.com/legalnews/ownership-of-business-related-social-med-52890" target="_blank">Ownership of Business-Related Social Media Accounts</a>.” We provided additional coverage of similar work-related social media account ownership issues in our 2012 post, “<a href="https://www.sociallyawareblog.com/topics/which-side-are-you-on-employers-and-employees-battle-over-ownership-of-social-media-accounts" target="_blank">Which Side Are You On? Employers and Employees Battle Over Ownership of Social Media Accounts</a>.”In addition, we’ve had our eye on other aspects of the social media fabric for more than a decade. In two 2014 posts (“<a href="https://www.sociallyawareblog.com/topics/whats-in-a-like_01" target="_blank">What’s in a Like</a>” and “<a href="https://www.sociallyawareblog.com/topics/she-liked-it-she-really-really-liked-it-federal-district-court-holds-facebook-fan-page-manager-doesnt-own-likes" target="_blank">She Liked It. She Really, Really Liked It: Federal District Court Holds Facebook Fan Page Manager Doesn’t Own ‘Likes’</a>”), we discuss the value of social media “likes” as assets, including likes as protected speech, as property, and as concerted activity. We reviewed cases such as <a href="https://www.ca4.uscourts.gov/Opinions/Published/121671.P.pdf" target="_blank">Bland v. Roberts</a> and <a href="https://www.docketalarm.com/cases/Florida_Southern_District_Court/0--13-cv-61582/Mattocks_v._Black_Entertainment_Television_LLC/101/" target="_blank">Mattocks v. Black Entertainment Television</a> that respectively raised issues of likes as protected speech and likes as property.The recent events of the Bang matter have reignited the conversation around social media account ownership and control. In addition, when a company and its owner/founder are closely aligned, if not synonymous, as was the case with Owoc and Bang, it raises additional questions where the line between a company and a person’s brand identity rests.

Social Links: Social Media Account Ownership Once Again in the Spotlight

Social Links: Social Media Account Ownership Once Again in the Spotlight

Social media continues to dominate the headlines this spring, with several high-profile events capturing the media’s, regulators’, and lawmakers’ attention.

Over the past year, we have seen a dramatic increase in the adoption of AI technologies across industries. Because transactions involving AI technologies can resemble those involving traditional software, like SaaS agreements, parties often assume that their expectations from those standard agreements about what is reasonable and “market” should also apply to AI-related technology transactions. And, in some cases, this approach is appropriate. When a vendor supplies hospitals with a hosted medical imaging platform, the fundamental nature of the transaction remains much the same, regardless of whether the platform includes AI-assisted diagnosis functionality. However, it is important not to overlook the unique issues raised by certain AI technology transactions, particularly those that involve generative AI models (“Generative Models”).Read the <a href="https://www.mofo.com/resources/insights/230425-key-issues-in-generative-ai-transactions" target="_blank">full client alert</a> for key takeaways on those issues.

Key Issues in Generative AI Transactions

Over the past year, we have seen a dramatic increase in the adoption of AI technologies across industries. Because transactions involving AI technologies can resemble those involving traditional software, like SaaS agreements, parties often assume that their expectations from those standard agreements about what is reasonable and “market” should also apply to AI-related technology transactions. 

Key Issues in Generative AI Transactions

Section 23o, the “<a href="https://www.jeffkosseff.com/home" target="_blank">26 words that changed the Internet</a>,” is once again under scrutiny from lawmakers.At the federal level, Republicans and Democrats on the Senate Judiciary panel’s subcommittee on privacy, technology, and the law found common ground in their calls to reform the <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank">27-year-old law</a>. Specifically, <a href="https://www.cnn.com/2023/03/08/tech/senators-section-230-reform/index.html" target="_blank">in a hearing earlier this month</a>, Connecticut Democrat Sen. Richard Blumenthal and Missouri Republican Sen. Josh Hawley joined forces to <a href="https://www.bloomberglaw.com/bloomberglawnews/exp/eyJjdHh0IjoiVEVOVyIsImlkIjoiMDAwMDAxODYtYzI5OS1kYzI3LWFkYmUtZmVkOWZjZjUwMDAxIiwic2lnIjoiUU93MEMvbFdXNjY0ZE81UktqRUw5Sm9VT1cwPSIsInRpbWUiOiIxNjc4MzYzMDQwIiwidXVpZCI6InJwTVBNNC91MUFyV2xnYTA5QWQ3RGc9PVE4R0JPamtJV1NNWmMrR1FCMHpTamc9PSIsInYiOiIxIn0=?bwid=00000186-c299-dc27-adbe-fed9fcf50001&cti=LFVL&emc=btenw_nl%3A15&et=NEWSLETTER&isAlert=false&item=read-text&qid=7431073&region=digest&source=newsletter&uc=1320000033&udvType=Alert&usertype=External" target="_blank">re-examine the immunity that Section 230’s provides</a> to digital platforms and publishers with respect to recommending harmful content to children. This follows the introduction, in 2022, by Senator Blumenthal and Marsha Blackburn, a Republican Senator from Tennessee, of the <a href="https://www.congress.gov/bill/117th-congress/senate-bill/3663/text" target="_blank">Kids Online Safety Act</a>, which aimed to shield children from online content that covered eating disorders, suicide, and sexual exploitation.At the state level, <a href="https://www.npr.org/2023/03/24/1165764450/utahs-new-social-media-law-means-children-will-need-approval-from-parents" target="_blank">Utah’s Governor Spencer Cox just signed two bills into law</a> that prohibit minors from creating an account on any digital property (whether a website, social media platform, or other electronic forum) unless they have express consent from a parent or legal guardian and provide official documentation identifying the child and the parent. The new laws, <a href="https://le.utah.gov/~2023/bills/static/SB0152.html" target="_blank">S.B. 152 Social Media Regulation Amendments</a>, would require any website or other platform with more than 10 million account holders from allowing a minor to register for and post content without such consent. In addition, these new laws also prohibit children under 18 from using social media platforms between 10:30 p.m. and 6:30 a.m.(Previously, <a href="https://libertas.org/bill/sb-152-restrictions-on-social-media-use-by-minors/" target="_blank">S.B. 152 passed the Utah House of Representatives 60–11 and the Utah Senate 23–4</a>.)Opponents to the bill, most notably the <a href="https://www.eff.org/" target="_blank">Electronic Frontier Foundation</a> (EFF), argue that requiring age verification would <a href="https://www.eff.org/deeplinks/2023/03/age-verification-mandates-would-undermine-anonymity-online" target="_blank">undermine online anonymity</a> not only for the minors the proposed law seeks to protect, but for all online users.These developments arise in the wake of the Supreme Court’s hearing in February in <a href="https://www.sociallyawareblog.com/topics/supreme-court-to-address-section-230-for-first-time" target="_blank">Gonzalez v. Google</a>, a case involving the question whether Section 230 immunizes online service providers when they use algorithms to recommend content to users, specifically terrorism-related videos posted on YouTube by other users of the video-sharing service.

Social Links: Section 230 Under Scrutiny (Again) From Lawmakers

Section 23o, the “26 words that changed the Internet,” is once again under scrutiny from lawmakers.
At the federal level, Republicans and Democrats on the Senate Judiciary panel’s subcommittee on privacy, technology, and the law found common ground in their calls to reform the 27-year-old law.

Social Links: Section 230 Under Scrutiny (Again) From Lawmakers

The U.S. Copyright Office has denied an attempt to register copyright in images created using the Midjourney generative AI tool. The reasoning of <a href="https://copyright.gov/docs/zarya-of-the-dawn.pdf" target="_blank">its decision</a> sharply limits the potential paths to receiving copyright in images created using generative AI tools, even where that output is generated in response to a prompt containing substantial textual authorship. The Copyright Office reasoned that because the person providing the textual prompts cannot predict how the generated image will look, that person is not an author of the image.The decision is subject to appeal but provides the first look at what the Registration Division of the Copyright Office thinks can and cannot be registered.Kashtanova’s Comic BookIn September 2022, “<a href="https://news.artnet.com/art-world/a-new-york-artist-claims-to-have-set-a-precedent-by-copyrighting-their-a-i-assisted-comic-book-but-the-law-may-not-agree-2182531" target="_blank">part-time prompt engineer</a>” Kris Kashtanova secured and <a href="https://arstechnica.com/information-technology/2022/09/artist-receives-first-known-us-copyright-registration-for-generative-ai-art/" target="_blank">publicly announced</a> what is believed to be the first U.S. copyright for a work created using a generative AI tool. The work, Zarya of the Dawn, is a comic book that combines text written by Kashtanova with images they generated using Midjourney and cropped and arranged into comic panels.Although Kashtanova, who uses gender-neutral pronouns, said they were “open” with the Copyright Office about how the work was made in the <a href="https://www.instagram.com/p/CivS3iiPigt/" target="_blank">Instagram post</a> announcing the registration, the Copyright Office did not see it that way. And, in October 2022, the Copyright Office notified Kashtanova in a letter that it was initiating cancellation of the registration of the work. Kashtanova argued in response that the images were copyrightable because they contributed the “modicum of creativity” required under <a href="https://supreme.justia.com/cases/federal/us/499/340/" target="_blank">Feist Publications v. Rural Telephone Service Co</a><a href="https://supreme.justia.com/cases/federal/us/499/340/">.</a>The Copyright Office DecisionTo be copyrightable, an image, like any work, must include at least a “modicum of creativity.” But, as the Copyright Office suggests in its recent letter, to be an author of that image, the putative author must not only provide that modicum of creativity but must also be a <a href="https://casetext.com/case/aalmuhammed-v-lee" target="_blank">“master mind”</a> of the work. Historically, to be a “master mind,” the individual must have significant creative control over the resulting work. However, in its letter to Kashtanova, the Registration Division appears to take the position that an individual does not control the resulting image if the individual cannot predict how it will look ahead of time. “[T]he process is not controlled by the user because it is not possible to predict what Midjourney will create ahead of time.” <a href="https://copyright.gov/docs/zarya-of-the-dawn.pdf" target="_blank">Copyright Office Letter</a>, 8 (emphasis added).To show their creative contribution, Kashtanova walked through the arduous iterative process they undertook to reach the final version of an image used in the comic book. They made hundreds, sometimes thousands, of iterations along the way, each modified via their prompts. However, the Copyright Office took this extensive iteration process to be necessary because Kashtanova was unable to predict the outputs that Midjourney would generate. But the Copyright Office analogized Kashtanova’s prompts to the suggestions and general direction a client may provide an artist they hire to create an image, which would not (in the decision’s view) lead to the client owning a copyright interest in the image. Key Insights1. No one should assume they own the copyright in any image they create using a generative AI tool.It will be difficult to satisfy the Copyright Office’s predictability requirement in many cases. 2. Expressive modifications to an AI tool-generated image are likely to be copyrightable.Although the Copyright Office denied copyright registration for the images that Kashtanova created solely using Midjourney, Kashtanova also sought registration for images that they created using Midjourney but altered post-production using Photoshop. The Copyright Office concluded that one of the Photoshopped images was still not copyrightable because the modifications did not contain sufficient expression. With respect to a second image, though, the Copyright Office withheld judgment because it did not have access to the pre-Photoshopped image and so could not determine whether copyrightable expression was added.3. This decision’s “control entails ability to predict” position may not be the final word.To be the “master mind” of a work, the Copyright Office and courts have long taken the position that the purported author of the work must have sufficient control over it. The Copyright Office’s position that Kashtanova could not be the “master mind” of the Midjourney outputs because they could not predict those outputs ahead of time arguably misunderstands the relationship between control and prediction. We can accurately predict lots of things that we cannot control. And, in contrast to the Copyright Office’s suggestion, we can control things that we cannot predict. Art, including music, gives many examples of control—examples where we take the artist to be the “master mind”—where the artist would readily admit that they cannot predict the results that their control will yield. For example, Jackson Pollock could not predict with certainty what shapes his paint would make on the canvas. And even when artists do not inject that sort of intentional unpredictability, they frequently describe the inability to predict the outcome of their work ahead of time. Indeed, some aestheticians argue that if you can predict everything about the art ahead of time, you’ve made bad art. See, e.g., R.G. Collingwood <a href="https://books.google.com/books/about/The_Principles_of_Art.html?id=SXpMC9416y4C" target="_blank">The Principles of Art</a> (Oxford University Press, 1938) at 122 (“But if his business is not amusement but art, the object at which he is aiming is not to produce a preconceived emotional effect on his audience but by means of a system of expressions . . . to explore his own emotions; to discover emotions in himself of which he was unaware, and, by permitting the audience to witness the discovery, enable them to make a similar discovery about themselves.”). The creation of art is, in real time, a process of discovery—not the rote execution of a preconceived plan.Future Copyright Office or court reasoning may attempt to tease out a distinction between the unpredictability in Kashtanova’s outputs and that in Pollock’s works. Whether that distinction will and should be a meaningful one for purposes of copyrightability remains to be seen. 4. This decision does not directly address how to analyze a claim that an image created using a generative AI tool infringes the copyright in a preexisting work.To be the author of a work, a person must have contributed their own copyrightable expression to it, and the “contribution” of copyrightable expression created by a different author is insufficient. There has been no claim that Kashtanova’s images contain human expression created by someone other than Kashtanova, and the decision does not provide direct guidance on how such a claim would be evaluated.