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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Often lauded as the most important law for online speech, Section 230 of the Communications Decency Act (CDA) does not just protect popular websites like Facebo

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Computer Service Providers Face Implied Limits on CDA Immunity

Computer Service Providers Face Implied Limits on CDA Immunity | Socially Aware

J. Alexander Lawrence

Often lauded as the most important law for online speech, Section 230 of the Communications Decency Act (CDA) does not just protect popular websites like Facebook, YouTube and Google from defamation and other claims based on third-party content. It is also critically important to spyware and malware protection services that offer online filtration tools.Section 230(c)(2) grants broad immunity to any interactive computer service that blocks content it considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” Under a plain reading of the statute, Section 230(c)(2) clearly offers broad protection. With respect to what the phrase “otherwise objectionable” was intended to capture, however, the protections are less clear.A federal district court in California recently had the opportunity to clarify the scope of this catchall phrase. In <a href="https://casetext.com/case/asurvio-lp-v-malwarebytes-inc?" target="_blank" rel="noopener noreferrer">Asurvio LP v. Malwarebytes, Inc.</a>, the Northern District Court of California held that Section 230 provided Malwarebytes immunity for its allegedly anticompetitive conduct and tossed the case. To fully understand this decision, a comparison with an earlier (but still recent) Ninth Circuit decision, <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/12/17-17351(2).pdf" target="_blank" rel="noopener noreferrer">Enigma Software Grp. USA, LLC v. Malwarebytes, Inc.</a>, which found otherwise, is critical. Notably, the two cases involved the same defendant, like state and federal claims, and identical defense under Section 230 raised by Malwarebytes. Why, then, did the two decisions result in a different outcome? Certainly, the legislative objective behind Section 230 played a role. But, more importantly, the answer lies in the plaintiffs’ status as a direct competitor, a standard nowhere to be found in Section 230.<h4>Enigma Software Grp. USA, LLC v. Malwarebytes, Inc.</h4>Enigma Software involved directly competing security software developers. Generally, when these providers identify malicious programs based on self-identified criteria and a user later attempts to open or download those programs, the user is alerted of a security risk, discouraged from downloading and advised to block the content. For eight years, Malwarebytes flagged programs it viewed obtrusive, misleading or deceptive as malware. It later started to block programs that it believed its users did not seem to like. Among these blocked programs were Enigma’s most popular competing offerings.Calling out the practice as anticompetitive, Enigma filed an action against Malwarebytes. Enigma claimed that Malwarebytes was engaging in deceptive business practices in violation of New York state law, interfering with business and contractual relations in violation of New York common law and violating the Lanham Act by deceiving Enigma’s potential consumers. Malwarebytes successfully transferred the case to the Northern District Court of California and countered, claiming that the catchall phrase of Section 230(c)(2) gave Malwarebytes immunity for amending its filtering guidelines, irrespective of any anticompetitive motives, which it, of course, denied existed.The Ninth Circuit had to decide whether Section 230(c)(2) conferred on online service providers unfettered discretion to screen any material they considered objectionable by providing immunity from liability. In reversing the district court’s dismissal of Enigma’s claims, a split Ninth Circuit panel found that the catchall phrase did not contemplate programs considered objectionable solely for anticompetitive reasons. In reaching this conclusion, the panel turned to the goals Congress sought to achieve with Section 230.The statutory aims of Section 230 include:<ul><li>Promoting continued development of the Internet and interactive computer services;</li><li>Preserving the “vibrant and competitive free market” for the Internet and interactive computer services;</li><li>Encouraging the development of technologies that “maximize user control”; and</li><li>Removing barriers for the “development and utilization of blocking and filtering technologies” that help restrict minors’ access to indecent online content.</li></ul>In light of these objectives, the Ninth Circuit held that an unqualified immunity would stifle rather than promote competition and forestall development of online blocking technology. The Ninth Circuit, therefore, found that “otherwise objectionable” does not encompass programs considered objectionable for purely anticompetitive reasons.In a pointed dissent, Judge Rawlinson noted the court must presume that Congress “says in a statute what it means and means in a statute what it says.” Judge Rawlinson argued that the majority’s real complaint was not that the district court construed the statute too broadly, but that the statute is written too broadly. But, in his view, that defect, if it is a defect, is one beyond the courts’ authority to correct. Judge Rawlinson would have held that the Ninth Circuit had no authority to rewrite the CDA safe harbor. That is Congress’s job.<h4>Asurvio LP v. Malwarebytes, Inc.</h4>Against this backdrop, the Northern District Court of California was once again called upon to explore the scope of the catchall “otherwise objectionable” language. In Asurvio, the plaintiff developed “software solutions that work in real time in the background of the operating system to optimize processing and locate and install all missing and outdated software drivers” and provided “technical support services for the removal of Spyware and Malware and all other facets of personal computer use.” Starting in 2017, Asurvio listed its technical support services in its boilerplate terms and conditions, which included technical support for removing malware. Shortly thereafter, Malwarebytes classified Asurvio’s products as potentially unwanted programs and discouraged its users from using Asurvio’s programs. As in Enigma Software, Asurvio brought claims for tortious interference with contractual relations, unfair competition and violation of the Lanham Act. Just as it did in Enigma Software, Malwarebytes invoked Section 230(c)(2) immunity.Pointing to Enigma Software, Asurvio argued that Section 230(c)(2) immunity did not protect Malwarebytes for screening Asurvio’s programs for anticompetitive purposes. The district court disagreed. Unlike Enigma, the court found that Asurvio was not Malwarebytes’ direct competitor. Asurvio, the court found, did not develop and market online filtration tools. The court also rejected Asurvio’s attempts to cast itself as a competitor, stating that a broad reading of competition would “render the statutory immunity meaningless.” Thus, because Asurvio did not directly compete with Malwarebytes, the limitations on Section 230(c)(2) recognized in Enigma Software were inapplicable. Malwarebytes was immune from liability, and Asurvio’s claims were altogether dismissed.<h4>Takeaway</h4>By drawing limits on Section 230(c)(2) immunity that appear nowhere in the statute, Enigma Software has been criticized as a “<a href="https://blog.ericgoldman.org/archives/2019/09/terrible-ninth-circuit-230c2-ruling-will-make-the-internet-more-dangerous-enigma-v-malwarebytes.htm" target="_blank" rel="noopener noreferrer">pro-spam, pro-virus and pro-spyware/adware</a>” decision, which harmed both the public and developers of online blocking technologies. While Malwarebytes could not get the full Ninth Circuit to hear the case, it has expressed an intention to seek Supreme Court review and has until mid-May to make that filing.It remains to be seen whether the Enigma Software decision will get Supreme Court review or whether federal courts outside of the Ninth Circuit will follow the same reasoning, but one thing is certain: Enigma Software introduced into Section 230(c)(2) new limits on Section 230 immunity, which the Asurvio court was obliged to follow. So, questions remain to be answered: how will courts define a direct-competitor? What about partial-competitors? What would be required to prove anticompetitive motives? Will courts impose other implied limitations on Section 230 immunity? How far will the courts go to carve out other conduct from Section 230 immunity? We will see how the law develops in this area.