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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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

A federal district court judge in Brooklyn, N.Y., <a href="https://www.hollywoodreporter.com/thr-esq/google-beats-song-lyric-scraping-lawsuit-1306788" target="_blank" rel="noopener noreferrer">dismissed the complaint in a case filed by Genius</a>, a platform that lets users share and annotate lyrics, holding that the plaintiff’s claims were preempted by copyright law. The suit alleged that Google had stolen from Genius transcriptions of song lyrics, and included those song lyrics in Google’s website boxes when Google users search for a song. Such actions, Genius alleged, amounted to “unfair and anticompetitive practices.” Genius did not allege copyright infringement, however, because the relevant songwriters and publishers, not Genius, own the copyright in the song lyrics at issue.In an effort to help bloggers and other online writers who create and publish more short-form content than they have time to register with the Copyright Office, the office has established a <a href="https://www.copyright.gov/rulemaking/shortonline-literaryworks/" target="_blank" rel="noopener noreferrer">new copyright registration option</a> that affords a simplified way to obtain copyright protection for blog entries, social media posts, web articles, and even comments to social media posts if they meet certain criteria. Those criteria include the requirement that each of the works separately contains between 50 and 17,500 words. Also, all the works in a single application must have been created by the same individual, or have been created jointly by the same group of individuals. All of the works also must first have been published as part of a website or online platform, such as a blog, online magazine, or social networking site.In response to the Federal Communications Commission’s request for comments on potential changes to <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener noreferrer">§230</a> of the Communications Decency Act, AT&T—which now owns Time Warner—is <a href="https://www.axios.com/att-will-ask-fcc-to-narrow-section-230-protections-98f86b39-2efe-409f-9d0f-08b7bbfaa389.html" target="_blank" rel="noopener noreferrer">telling the FCC to shrink the protections that §230 affords</a> technology companies from liability for content posted by third parties.In a criminal case in which an alleged murderer sought to exonerate himself by seeking the gun-shot-wound victim’s Facebook messages, the California Supreme Court refused to answer the Constitutional question of <a href="https://www.law.com/therecorder/2020/08/13/california-supreme-court-punts-on-constitutionality-of-subpoenaing-social-media-platforms-user-communications/" target="_blank" rel="noopener noreferrer">whether a social media platform’s refusal to turn over messages violates the alleged criminal’s right to a fair trial</a>. The court’s reasoning: In this particular case, the validity of the underlying subpoena was questionable.YouTube has <a href="https://mashable.com/article/youtube-partner-steven-crowder-demonetization/" target="_blank" rel="noopener noreferrer">re-enabled monetization</a> of the account of ultra-conservative commentator <a href="https://www.youtube.com/channel/UCIveFvW-ARp_B_RckhweNJw" target="_blank" rel="noopener noreferrer">Steven Crowder</a>, who—among other things—for years targeted former Vox writer and current YouTuber <a href="https://www.youtube.com/c/CarlosMazaTube/featured" target="_blank" rel="noopener noreferrer">Carlos Maza</a>, making insulting comments about Maza’s ethnicity and sexuality. The Washington Post reports that several of the platform’s moderators said that “their recommendations to strip advertising from videos that violate the site’s rules were frequently overruled by higher-ups within YouTube when the videos involved higher profile content creators who draw more advertising.”The Florida Fourth District Court of Appeal reversed a cyberstalking injunction against Florida lawyer Ashley Ann Krapacs. The injunction was imposed on Krapacs for publishing disparaging posts on social media about another lawyer, Nisha Bacchus, including the posts Krapacs published during a four-hour period in one day while Bacchus “untagged herself in real time,” according to Law.com. Read the brief <a href="https://www.law.com/dailybusinessreview/2020/08/12/victory-for-broward-lawyer-who-feuded-with-another-attorney-on-social-media-no-cyberstalking-injunction/" target="_blank" rel="noopener noreferrer">explanation of the court’s reasoning</a>.

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

New copyright registration option for bloggers; AT&T’s opinion on CDA §230; questions about YouTube’s anti-hate rules

A federal district court judge in Brooklyn, N.Y., dismissed the complaint in a case filed by Genius, a platform that lets users share and annotate lyrics, holdi

New copyright registration option for bloggers; AT&T’s opinion on CDA §230; questions about YouTube’s anti-hate rules

In <a href="https://www.govinfo.gov/content/pkg/USCOURTS-nyed-1_18-cv-05680/pdf/USCOURTS-nyed-1_18-cv-05680-0.pdf" target="_blank" rel="noopener noreferrer">Elliott v. Donegan</a>, a federal district court in New York held that <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener noreferrer">Section 230</a> of the Communications Decency Act does not warrant the dismissal of a defamation claim where the plaintiff’s complaint did not “foreclose[] the possibility that Defendant created or developed the allegedly unlawful content.” The content at issue was a “publicly accessible, shared Google spreadsheet” titled “Shitty Media Men” that the defendant Moira Donegan had started containing a list of men in the media business who had allegedly committed some form of sexual violence.Donegan, a media professional, circulated the list via email and other electronic means to women in her industry in an effort to share information about “people to avoid.” The list included the headings “NAME, AFFILIATION, ALLEGED MISCONDUCT, and NOTES.” It also included a disclaimer at the top of the spreadsheet stating, “This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt.”After Donegan first published the list, “Shitty Media Men” assumed a life of its own. The spreadsheet went viral and a flurry of allegations were swiftly submitted. Soon, 70 men were named and major media outlets were preparing to publish related stories. As a result, the defendant took the spreadsheet offline about 12 hours after she posted it.Among the men named on “Shitty Media Men” was the plaintiff Stephen Elliottt, whom the court describes as “an author and content creator.” Someone added Elliottt’s name to the list, writing under the “ALLEGED MISCONDUCT” heading “rape accusations, sexual harassment.” In addition, Elliott’s entry was outlined in red, indicating that he was “accused of physical sexual violence by multiple women.” Subsequently, other changes were made to Elliottt’s entry on the list: additional allegations against him were added and his entry was moved up from row 13 to row 12.Elliott asserted that the allegations about him on the list were false and he sued Donegan and a number of Jane Does for defamation.Donegan moved to dismiss the case pursuant to <a href="https://www.law.cornell.edu/rules/frcp/rule_12#:~:text=Rule%2012(b)(6)%2C%20permitting%20a%20motion%20to,state%20a%20cause%20of%20action." target="_blank" rel="noopener noreferrer">Rule 12(b)(6) of the Federal Rules of Civil Procedure</a> based on Section 230 of the Communications Decency Act, a federal statute that, as regular readers of Socially Aware will <a href="https://www.sociallyawareblog.com/2019/07/17/federal-circuit-holds-that-section-230-locks-out-locksmiths/">already know</a>, provides broad immunity to online intermediaries from liability for content provided by others. The court first examined whether Donegan was “a provider or user of an interactive computer service,” which is a threshold requirement for the Section 230 safe harbor. Likening the spreadsheet to a message board that allows individuals to post comments and citing <a href="https://www.courtlistener.com/opinion/4259325/ftc-v-leadclick-media-llc/" target="_blank" rel="noopener noreferrer">Fed. Trade Comm’n v. LeadClick Media, LLC</a>, the court held that Donegan did qualify as an interactive computer service provider.As the court noted, however, an interactive computer service provider such as Donegan is only eligible for Section 230 immunity with respect to “information provided by another information content provider.” In other words, if an interactive service provider such as Donegan also serves as an ‘information content provider’ of the content which gives rise to the underlying claim,” then Section 230 immunity does not attach. This is the same principle originally established in the seminal Section 230 case <a href="https://caselaw.findlaw.com/us-9th-circuit/1592538.html" target="_blank" rel="noopener noreferrer">Fair Housing Council of San Fernando Valley v. Roommates.com, LLC</a>, where the Ninth Circuit held that an online intermediary cannot claim Section 230 immunity for unlawful content if the intermediary itself created or contributed to the content.With this principle in mind, the Donegan court proceeded to examine Elliott’s complaint to determine whether, on the face of the complaint itself, it was clear that Donegan had not herself created or developed the allegedly defamatory spreadsheet entries concerning the plaintiff. First, the court noted that Elliott had alleged “that Defendant fabricated the allegations against him and inputted them in the List.” With respect to any defamatory entries that Donegan herself may have posted to the list, the court notes that “[t]he parties—and the Court—agree that CDA immunity does not apply if that is proven true.”The court then goes on to examine the plaintiff’s allegations that Donegan “published the allegedly defamatory accusations in the List as relayed to her by another person.” Donegan argued that, with respect to publishing third-party accusations, “she is shielded by §230 because she did not materially contribute to their allegedly defamatory meaning, and did not change the meaning and purpose of the content.” The court, however, noted that “this argument assumes a key fact not known to the Court at this juncture—whether Plaintiff materially contributed to the allegedly defamatory meaning—which is the very fact on which CDA immunity turns.” In other words, at the pleading stage, the court simply did not have the necessary facts to determine whether Donegan did or did not enjoy §230 immunity with respect to the accusations provided by others.The court also raised an interesting issue based on the Ninth Circuit’s analysis in Batzel v. Smith. Specifically, the court noted, citing Batzel, that “if Defendant inputted information into the List that was not provided to Defendant for use on the Internet, she would not qualify for CDA immunity.” For example, under the Batzel principle, Donegan would not be eligible for the Section 230 safe harbor if she received a “snail mail” letter from a third party containing accusations against the plaintiff and then posted those accusations on the online list. Given the preliminary stage of the case, the court was not able to determine whether any third parties who provided information to Donegan did or did not intend that information to be posted online.Donegan fared somewhat better with respect to Elliott’s argument that Donegan was not entitled to Section 230 immunity because she had specifically encouraged posting of unlawful content. Elliott asserted that Donegan encouraged defamatory content through the disclaimer at the top of the spreadsheet, which described the list as “a collection of allegations and rumors” that should be taken “with a grain of salt.” According to Elliott, “[t]his statement alone could reasonably have been interpreted by the List’s recipients as encouraging them to post their own ‘rumors’.” The court was not convinced, however, and noted “[t]o the extent that Plaintiff relies on the List’s design and headers to argue that Defendant specifically encouraged unlawful content, that reliance would be misplaced.”The court analogized the spreadsheet’s format to the website design in Roommates.com. In that case, the defendant Roommates.com operated a website that matched individuals seeking roommates. A portion of the website presented users with questions regarding their sex, sexual orientation and familial status, and their roommate preferences based on these same criteria. Users were required to provide answers to these questions using predetermined responses presented through dropdown menus. Because the dropdown menus specifically required users to provide responses regarding their roommate preferences “based on criteria that appear to be prohibited by the [Fair Housing Act],” the Ninth Circuit held that Roommates.com could not claim Section 230 immunity with respect to the allegedly discriminatory activity.The Roommates.com court made a different determination, however, with respect to users’ input in the website’s blank text box, which asked users to “tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.” Some users did enter discriminatory comments in the text box, but the Ninth Circuit held that Roommates.com was entitled to Section 230 immunity for such comments because Roommates.com did not  “provide any specific guidance” regarding users’ entries in the comment box, and it did not “urge subscribers to input discriminatory preferences.” The Elliottt court held that the format of Donegan’s spreadsheet was more similar to the Roommates.com comment box than to the Roommates.com dropdown menus:  “[a]s with Roommates’ comment box, the possibility that someone may have entered defamatory content onto the List does not mean that Defendant specifically encouraged unlawful content.”The court also held, however, that the “full contours of Defendant’s conduct during the approximately 12 hour period during which her Google spreadsheet was online are unknown at this juncture. Accordingly, Plaintiff is entitled to discovery on whether Defendant specifically encouraged the posting of unlawful content on the List.”Finally, the court rejected Elliott’s argument that Donegan’s augmentation of third-party contributions to the list undermined the Section 230 safe harbor. Donegan had highlighted certain spreadsheet entries, including Elliott’s, in red to signify accusations of “physical sexual violence by multiple women” and added to such entries the annotation “multiple women allege misconduct.” Elliott argued that, based on such augmentation of the entries, Donegan had “materially contributed to the allegedly defamatory statement” about him.The court rejected this argument, however, and cited LeadClick for the proposition that “the key question in determining whether a defendant is liable for developing content is not whether she ‘augment[ed] the content generally,’ but instead whether she ‘materially contribut[ed] to its alleged unlawfulness’.” Aggregation and classification of third-party content such as Donegan’s augmentation of the spreadsheet entries, the court held, constitutes “quintessential neutral assistance,” citing <a href="https://scholar.google.com/scholar_case?case=18029531304035617061&hl=en&as_sdt=6&as_vis=1&oi=scholarr" target="_blank" rel="noopener noreferrer">Herrick v. Grindr</a>, a case we previously <a href="https://www.sociallyawareblog.com/2019/04/30/appeals-court-upholds-section-230-protections-in-case-against-grindr/" target="_blank" rel="noopener noreferrer">covered on Socially Aware</a>. Such neutral assistance does not transform an interactive computer service provider into a “developer of the underlying misinformation” for Section 230 purposes.Given the unresolved facts at the pleading stage regarding whether Donegan is or is not entitled to Section 230 immunity, the court denied her motion to dismiss. But, the court noted, “CDA immunity may prove to be a gating issue in this case and the Court wishes to avoid an unnecessary expenditure of judicial resources.” Accordingly, the court directed the parties to proceed with “narrowly tailored discovery to address factual issues related to Defendant’s CDA immunity defense,” and invited the parties to move for summary judgment once such discovery is completed. We will be watching this case for further developments.

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EDNY Refuses to Dismiss on § 230 Grounds in “Shitty Media Men” Defamation Case

EDNY Refuses to Dismiss on § 230 Grounds in “Shitty Media Men” Defamation Case

In Elliott v. Donegan, a federal district court in New York held that Section 230 of the Communications Decency Act does not warrant the dismissal of a defamati

It is another win for social media platforms in the realm of the Communications Decency Act’s Section 230. In a case of first impression within the Third Circuit, the Eastern District of Pennsylvania in <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=3243&context=historical" target="_blank" rel="noopener noreferrer">Hepp v. Facebook</a> ruled that social media platforms are immune under the Communications Decency Act for right of publicity violations under state law by users of such platforms.Karen Hepp, a television news anchor for FOX 29 News, filed a complaint against several social media platforms, including Facebook, Imgur, Reddit, and Giphy (collectively, “social media defendants”), alleging that the social media defendants violated <a href="https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/42/00.083.016.000..HTM" target="_blank" rel="noopener noreferrer">Pennsylvania’s right of publicity statute</a> and Hepp’s common law right of publicity, based on such defendants’ “unlawful use of her image.”Two years before filing her complaint, Hepp discovered that a photograph of her was taken without her consent by a security camera in a New York City convenience store. The photograph was subsequently used in online advertisements for erectile dysfunction and dating websites. For example, Hepp’s photograph was featured: (a) on Imgur under the heading “milf,” and (b) on a Reddit post titled “Amazing” in the subgroup r/obsf (“older but still $#^able”). Hepp alleged that, as a public figure, she suffered harm from the unauthorized publication of her image on the platforms hosted by the social media defendants, but she did not allege that such defendants created, authored, or directly published the photograph at issue.In response to Hepp’s complaint, each social media defendant filed a motion to dismiss, asserting, among other things, immunity under <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener noreferrer">Section 230 of the CDA</a>. As we have noted in <a href="https://www.sociallyawareblog.com/2019/04/30/appeals-court-upholds-section-230-protections-in-case-against-grindr/" target="_blank" rel="noopener noreferrer">prior articles</a>, Section 230(c) provides a federal safe harbor for internet service providers against liability for content originating from third-party users and content creators. This safe harbor is not boundless, however. For example, Section 230(e)(2) carves out causes of action “pertaining to intellectual property.” Hepp attempted to use this exception to get around the Section 230 immunity afforded to the social media defendants, but the court was not convinced. Ultimately, the court sided with the social media defendants and granted their motions to dismiss.In reaching its decision, the court acknowledged the circuit split between the Ninth Circuit and several district courts over whether the CDA preempts state intellectual property claims. The court compared two cases: (i) a Ninth Circuit case, <a href="https://law.justia.com/cases/federal/appellate-courts/F3/488/1102/496805/" target="_blank" rel="noopener noreferrer">Perfect 10 v. CCBill</a>, which held that the CDA preempts right of publicity claims; and (ii) a case by the Southern District of New York, <a href="https://www.courtlistener.com/opinion/1888474/atlantic-recording-corp-v-project-playlist-inc/" target="_blank" rel="noopener noreferrer">Atl. Recording Corp. v. Project Playlist</a>, which reached the opposite holding of Perfect 10. In the end, the court reached the same conclusion as the Ninth Circuit—that the CDA preempts state law intellectual property claims, including state right of publicity claims. The court was persuaded by the Ninth Circuit’s reasoning in Perfect 10, stating that the inclusion of state law intellectual property claims within the exceptions of the Section 230 safe harbor “would fatally undermine the broad grant of immunity provided by the CDA.” Accordingly, the court held that Hepp’s statutory and common law right of publicity claims based on state law did not fall within the Section 230(e)(2) exception, and that only federal intellectual property claims meet the Section 230(e)(2) exception. With this decision, the Eastern District of Pennsylvania deviated from its neighbors, the First and Second Circuits, and aligned itself with the Ninth Circuit, by maintaining the robust protections of the CDA with respect to the scope of Section 230(e)(2).Given the unsettled issue of whether Section 230(e)(2) applies to all intellectual property claims (both federal and state), a plaintiff’s chance of success in asserting Section 230(e)(2) in response to a defendant’s motion to dismiss would likely vary from court to court. So, where do things currently stand amongst the circuits? The following is a status chart to help navigate the issue:<table width="0" style="width: undefined%; height: auto;"><tbody><tr><td width="90" style="width: undefined%; height: auto;">Circuit</td><td width="132" style="width: undefined%; height: auto;">Does the Section 230 safe harbor protect against state IP claims?</td><td width="402" style="width: undefined%; height: auto;">Case</td></tr><tr><td width="90" style="width: undefined%; height: auto;">First</td><td width="132" style="width: undefined%; height: auto;">No</td><td width="402" style="width: undefined%; height: auto;"><a href="https://www.courtlistener.com/opinion/1611596/doe-v-friendfinder-network-inc/" target="_blank" rel="noopener noreferrer">Doe v. Friendfinder Network</a> (D.N.H. 2008) (disagreeing with the Ninth Circuit’s decision in Perfect 10 that Section 230(e)(2) exempts only federal intellectual property laws from the operation of Section 230)</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Second</td><td width="132" style="width: undefined%; height: auto;">No</td><td width="402" style="width: undefined%; height: auto;"><a href="https://www.courtlistener.com/opinion/1888474/atlantic-recording-corp-v-project-playlist-inc/" target="_blank" rel="noopener noreferrer">Atl. Recording Corp. v. Project Playlist</a> (S.D.N.Y. 2009) (denying defendant’s motion to dismiss by finding that Section 230(e)(2) does not immunize the defendant from plaintiffs’ state law claims)</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Third</td><td width="132" style="width: undefined%; height: auto;">Yes</td><td width="402" style="width: undefined%; height: auto;"><a href="https://www.courthousenews.com/wp-content/uploads/2020/06/unauthorizedphoto.pdf" target="_blank" rel="noopener noreferrer">Hepp v. Facebook</a> (E.D. Pa. June 5, 2020)</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Fourth</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;">No case available</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Fifth</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;">No case available</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Sixth</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;">No case available</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Seventh</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;"><a href="https://www.courtlistener.com/opinion/2371993/stayart-v-yahoo-inc/" target="_blank" rel="noopener noreferrer">Stayart v. Yahoo!</a> (E.D. Wis. 2009) (declining to decide on the question of whether Section 230(e)(2) applies to the plaintiff’s state law claims)</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Eighth</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;">No case available</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Ninth</td><td width="132" style="width: undefined%; height: auto;">Yes</td><td width="402" style="width: undefined%; height: auto;"><a href="https://www.leagle.com/decision/20071590488f3d110211584" target="_blank" rel="noopener noreferrer">Perfect 10 v. CCBill</a> (9th Cir. 2007)</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Tenth</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;">No case available</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Eleventh</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;"><a href="https://www.casemine.com/judgement/us/5914b511add7b0493477029b" target="_blank" rel="noopener noreferrer">Almeida v. Amazon</a> (11th Cir. 2006) (declining to determine whether the CDA preempts the plaintiff’s state law right of publicity claim)</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Federal</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;">No case available</td></tr></tbody></table>As illustrated by the chart, the state versus federal intellectual property issue under Section 230(e)(2) is far from a decided matter amongst the courts. Finally, it is unclear how recent efforts by the legislative and executive branches to revoke, modify, or scale back the Section 230 immunity will affect future opinions of the courts, especially those courts for which the issue of the scope of Section 230(e)(2) would be a case of first impression. Only time will tell.

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Associate

Evangeline Phang is an associate in the Technology Transactions Group of Morrison & Foerster’s San Francisco Office.
Her practice focuses on transactional matters involving intellectual property and t

Evangeline Phang

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District Court in 3rd Circuit Sides with 9th Circuit: §230 Protects Social Platforms from State Law Intellectual Property Claims

District Court in 3rd Circuit Sides with 9th Circuit: §230 Protects Social Platforms from State Law Intellectual Property Claims

It is another win for social media platforms in the realm of the Communications Decency Act’s Section 230. In a case of first impression within the Third Circui

Expressing concern about the spread of disinformation related to COVID-19, Federal Trade Commissioner <a href="https://www.mediapost.com/publications/article/353769/ftcs-chopra-says-congress-may-need-to-revisit-tec.html?utm_source=newsletter&utm_medium=email&utm_content=readnow&utm_campaign=119133&hashid=NDVHOmKrFJOy4V9Oy6E3fBNv4VU" target="_blank" rel="noopener noreferrer">Rohit Chopra said</a> Congress may need “to reassess the special privileges afforded to tech platforms, especially given their vast power to curate and present content in ways that may manipulate users.” His words implicate <a href="https://www.sociallyawareblog.com/2019/07/17/federal-circuit-holds-that-section-230-locks-out-locksmiths/" target="_blank" rel="noopener noreferrer">one of our favorite topics</a> here at Socially Aware: <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener noreferrer">Section 230 of the Communications Decency Act</a>, which generally protects websites from liability for content posted by third parties.Florida Governor Ron DeSantis signed into law legislation requiring Florida state agencies, local governments and firms that contract with them to use the E-Verify system, an online database operated by the U.S. Department of Homeland Security that can confirm a person’s eligibility to work in the United States.In the wake of a series of tweets insulting the family of Turkey’s President, Recep Tayyip Erdogan, the president <a href="https://apnews.com/791bf321269ad1ce289d14304368ba2a" target="_blank" rel="noopener noreferrer">submitted legislation to parliament</a> that would require social media companies with more than 1 million daily users in Turkey to appoint someone responsible for, among other things, responding to the company’s alleged violations of privacy laws.China’s recently imposed security law—which outlaws subversion, secession, terrorism and colluding with foreign forces—had many Hong Kongers “<a href="https://economictimes.indiatimes.com/news/international/world-news/hong-kongers-scrub-social-media-history-in-face-of-security-law/articleshow/76777320.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst" target="_blank" rel="noopener noreferrer">scrubbing their social media accounts</a>.”Pop-up brokers tried to capitalize on the scarcity of personal protective equipment—especially masks—meant to safeguard people against COVID-19 by connecting with suppliers on LinkedIn. Learn <a href="https://www.wired.com/story/linkedin-coronavirus-medical-equipment-ppe-shortage/" target="_blank" rel="noopener noreferrer">what makes that social media platform convenient for sellers and scammers interested in sourcing goods</a>.In a suit that Socially Aware <a href="https://www.sociallyawareblog.com/2019/11/12/the-joys-and-dangers-of-tweeting-a-cda-immunity-update/" target="_blank" rel="noopener noreferrer">covered last year</a>, a federal district court in New York was able to avoid addressing whether a defamation claim against television show host Joy Reid should be dismissed based on the safe harbor in Section 230 of the Communications Decency Act. The reason: The plaintiff in the suit <a href="https://www.sociallyawareblog.com/2019/11/12/the-joys-and-dangers-of-tweeting-a-cda-immunity-update/" target="_blank" rel="noopener noreferrer">failed to prove actual malice</a>, which is required to succeed on a defamation claim against a public figure. On remand, <a href="https://www.courtlistener.com/opinion/4767998/la-liberte-v-reid/" target="_blank" rel="noopener noreferrer">the U.S. Court of Appeals in July 2020</a> once again passed on the opportunity to answer the re-tweet question, holding, “[The plaintiff’s] initial complaint included Reid’s retweet of the Vargas tweet; but since [the plaintiff] later dropped that claim, we need not decide whether a retweet qualifies for Section 230 immunity. Nor are we called to decide whether Section 230 protects a social media user who copies verbatim (and without attribution) another user’s post, a question that may be complicated by issues as to malice and status as a public figure.This opinion piece argues that, because facial recognition technology can be inaccurate and biased, and “privacy-encroaching facial recognition companies rely on social media platforms to scrape and collect user facial data,” <a href="https://venturebeat.com/2020/07/05/social-media-must-add-a-do-not-track-option-for-images-of-our-faces/" target="_blank" rel="noopener noreferrer">social media platforms should add a “do-not-track” option</a> for users’ faces.

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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).

FTC questions protections afforded tech platforms; LinkedIn was platform of choice for sellers of COVID-19 PPE; Appeals court passes on “retweet” propriety question

Expressing concern about the spread of disinformation related to COVID-19, Federal Trade Commissioner Rohit Chopra said Congress may need “to reassess the speci

FTC questions protections afforded tech platforms; LinkedIn was platform of choice for sellers of COVID-19 PPE; Appeals court passes on “retweet” propriety question

Foreign websites that use geotargeted advertising may be subject to personal jurisdiction in the United States, even if they have no physical presence in the United States and do not specifically target their services to the United States, according to a new ruling from the Fourth Circuit Court of Appeals.In UMG Recordings, Inc. v. Kurbanov, twelve record companies sued Tofig Kurbanov, who owns and operates the websites: flvto.biz and 2conv.com. These websites enable visitors to rip audio tracks from videos on various platforms, like YouTube, and convert the audio tracks into downloadable files.The record companies sued Kurbanov for copyright infringement and argued that a federal district court in Virginia had specific personal jurisdiction over Kurbanov because of his contacts with Virginia and with the United States more generally. Kurbanov moved to dismiss for lack of personal jurisdiction, and the district court granted his motion.The district court found that both flvto.biz and 2conv.com were semi-interactive, that the visitors’ interactions with them were non-commercial, and that Kurbanov did not purposefully target either Virginia or the United States. As a result, the court ruled that no federal court in the United States had personal jurisdiction over Kurbanov and to exert such jurisdiction would violate due process. On appeal, however, the Fourth Circuit reversed the district court’s ruling and remanded the case.Facts of the CaseTofig Kurbanov is a Russian citizen.  He was born in and still resides in Rostov-on-Don, Russia. He has never worked on his websites in the United States, does not employ anyone in the United States, and has never even visited the United States.While flvto.biz and 2conv.com are largely used to rip music from YouTube, Kurbanov asserts that his websites could also have non-infringing uses such as by a professor or a student to download the audio from a video lecture or by parents who may want to keep only the audio track from a video of their child’s school concert.Flvto.biz and 2conv.com are free to use, and users are not required to create an account or register to use the ripping service. Kurbanov does not maintain any relationship with the websites’ users other than requiring them to agree to the websites’ Terms of Use before they can download audio files.Kurbanov’s websites are free. He makes money by selling advertisements. His websites have geolocation or geotargeting capabilities, which can record users’ IP addresses and countries of origin. This allows the websites to carry geotargeted ads, which in turn attract advertising brokers and advertisers who want to display specific advertisements to certain countries, states, or cities. But Kurbanov does not sell advertising space on the websites directly to advertisers.  Instead, he sells advertising space to advertising brokers who then resell that space to advertisers.Kurbanov claims that he has no direct relationship or communication with any of the advertisers on his websites and he has little control over the relationship that the brokers have with the advertisers. Furthermore, he has no control over which advertisers are selected for the geotargeting advertisements.While many of the advertising brokers that Kurbanov uses are based in the Ukraine, at least two of them are based in the United States: one in New York and one in California.Flvto.biz and 2conv.com are very popular. They are two of the most popular stream-ripping websites in the world. Between October 2017 and September 2018, they had over 300 million visitors from more than 200 countries around the world. About 10% of these websites’ users come from the United States Within the United States and about 2% of those users are in Virginia.Kurbanov’s websites do have a few other contacts with the United States. For example, his domain names are registered with a U.S.-based domain name registrar and the websites’ top-level domains, “.com” and “.biz,” are administered by companies headquartered in Virginia. The sites have a registered Digital Millennium Copyright Act (DMCA) agent in the United States. And, until July 2018, his websites’ servers were hosted by a global web services provider, which has servers in Virginia. Other than those contacts which many foreign website owners share, Kurbanov has no connections to the United States.Specific Personal JurisdictionThe parties agree that there is no general personal jurisdiction over Kurbanov in Virginia. But, the record companies assert, among other things, that there is specific personal jurisdiction over Kurbanov in Virginia under Fed. R. Civ. P. 4(k)(1). Rule 4(k)(1) provides that a district court may exercise personal jurisdiction over Kurbanov if he is “subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located” like Virginia. That exercise of jurisdiction is lawful as long as it is authorized by the state’s long-arm statute and the application of the long-arm statute is consistent with the due process clause of the Fourteenth Amendment.To meet constitutional due process requirements for personal jurisdiction, Kurbanov must have “minimum contacts” so that “the maintenance of the suit does not offend traditional notion of fair play and substantial justice.” To satisfy this, the record companies must show that Kurbanov “purposefully directed his activities” at Virginia residents and that their cause of action “arise[s] out of” those activities. The Fourth Circuit created a three-prong test for specific personal jurisdiction: “1. The extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; 2. Whether the plaintiffs’ claims arise out of those activities directed at the State; and 3. Whether the exercise of personal jurisdiction would be constitutionally reasonable.”In most matters, the purposeful availment analysis requires that the court examine the quality and nature of the party’s connections to the forum state such as whether the person maintained offices or agents in the state or whether the person deliberately tried to initiate business in the state. But, in the context of websites, the analysis is often different. Courts generally use the sliding scale or “Zippo test” to help determine a website’s purposeful availment. The Zippo test requires that a court examine the website’s level of interactivity and commercialism. The more interactive and commercial a website is, the more likely a court will have jurisdiction over it.In this case, the Fourth Circuit decided that Kurbanov’s websites were somewhat interactive because they record users’ IP address and because visitors must agree to the Terms of Use in order to access the websites. The Court also stated that it is not necessary to determine if a website is highly or only semi-interactive for personal jurisdiction. It found that it is more important to examine whether Kurbanov intentionally directed his activities at Virginians. When examining Kurbanov’s actions, the Court decided that Kurbanov had purposefully availed himself of conducting business in Virginia because many Virginians used his websites and because the geotargeted advertising on his websites targets customers like those in Virginia with local ads.  Since Kurbanov makes money from these advertisements, the Court reasoned that this made his websites commercial in nature and that, as a result of these geotargeted ads, Kurbanov is exploiting his Virginia user base for commercial gain.The Fourth Circuit also found that the second prong of the personal jurisdiction test was satisfied: The record companies’ claims did arise out of Kurbanov’s contacts with Virginia. In reaching this conclusion, the Court reasoned that Kurbanov did not just create a website that happened to be accessible by Virginians.  Instead, he “actively facilitated the alleged music piracy through a complex web involving Virginia visitors, advertising brokers, advertisers, and location-based advertising.” It was this “complex web” that gave rise to the record companies’ copyright infringement claims.Finally, the Court did not analyze the third prong of its test since the district court had not done so. Instead, it remanded the case to the district court to perform a reasonability analysis.Key TakeawayPrior court decisions have found geotargeting of advertisements in the forum state generally insufficient to establish personal jurisdiction, in particular where the claim does not arise out of the advertisement itself.Thus, website owners that use geotargeted ads should take note. Just because they do not have a physical presence in the United States and do not intentionally seek to attract users from the United States, does not mean that they are safe from being hauled into a U.S. court.

L.W. v. Snap Inc.,  675 F. Supp. 3d 1087 

Wamai v. Industrial Bank of Korea , 2021 WL 3038402 

J. Alexander Lawrence

Stretching the Bounds of Personal Jurisdiction, 4th Circuit Finds Geotargeted Advertising May Subject Foreign Website Owner to Personal Jurisdiction in the U.S.