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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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

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Every day, social media users upload millions of images to their accounts; each day 350 million photos are uploaded to Facebook alone. Many social media websites make users’ information and images available to anyone with a web browser. The wealth of public information available on social media is immensely valuable, and the practice of webscraping—third parties using bots to scrape public information from websites to monetize the information—is increasingly common.The photographs on social media sites raise thorny issues because they feature individuals’ biometric data—a type of data that is essentially immutable and highly personal. Because of the heighted privacy concerns, collecting, analyzing and selling biometric data was long considered taboo by tech companies — at least until Clearview AI launched its facial recognition software.<h5>Clearview AI’s Facial Recognition Database</h5>In 2016, a developer named Hoan Ton-That began creating a facial recognition algorithm. In 2017, after refining the algorithm, Ton-That, along with his business partner Richard Schwartz (former advisor to Rudy Giuliani) founded Clearview AI and began marketing its facial recognition software to law enforcement agencies. Clearview AI reportedly populates its photo database with publicly available images scraped from social media sites, including Facebook, YouTube, Twitter, and Venmo, and many others. <a href="https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html" target="_blank" rel="noopener">The New York Times</a> reported that the database has amassed more than three billion images.By analyzing the biometric information from the images in the database, Clearview AI allows a user to upload a photo of any person and immediately see all publicly available photos of that person, along with links to where those photos appear. According to the company, Clearview AI’s facial recognition software has been used by more than 600 law enforcement agencies, including the FBI and the Department of Homeland Security.While Clearview AI touts its software as groundbreaking, such an expansive facial recognition database raises serious privacy concerns. Several U.S. senators, along with several digital rights groups such as the Electronic Frontier Foundation, have criticized Clearview AI for eroding individual privacy rights. Recently, <a href="https://www.nytimes.com/2020/01/22/technology/clearview-ai-twitter-letter.html">Twitter sent a cease-and-desist letter to Clearview AI</a> accusing Clearview AI of violating Twitter’s policies and demanding that Clearview AI stop taking photos and other data from the site. Similar cease and desist letters from Google, Facebook, Venmo and YouTube reportedly followed.<h5>Litigation Against Clearview AI</h5>Clearview AI has received additional scrutiny after being served with three class action complaints, two <a href="https://www.classaction.org/media/hall-v-clearview-ai-inc-et-al.pdf" target="_blank" rel="noopener">pending</a> in the <a href="https://www.courthousenews.com/wp-content/uploads/2020/01/Surveillance-1.pdf" target="_blank" rel="noopener">U.S. District Court for the Northern District of Illinois</a> and one pending in the <a href="http://websterbook.com/wp-content/uploads/2020/02/Clearview-AI-Class-Action-Lawsuit.pdf" target="_blank" rel="noopener">U.S. District Court for the Eastern District of Virginia</a>. In each lawsuit, the plaintiffs are seeking an injunction that will (a) bar Clearview AI from collecting the class members’ photographs and (b) order Clearview AI to delete all class members’ data from the company’s database, potentially destroying Clearview AI’s business. The complaints in these cases provide examples of some of the legal claims available to individuals to combat unauthorized webscraping of their private information.In the first lawsuit, the plaintiff, Illinois resident David Mutnick, seeks class certification on behalf of a nationwide Constitutional Rights Class as well as an Illinois Class. On behalf of those classes, Mutnick alleges a combination of constitutional and state law claims.Mutnick asserts a variety of constitutional claims arising under the First, Fourth and Fourteenth Amendments, along with violation of the Contracts Clause. While Clearview AI is not a state actor and thus typically not subject to constitutional claims, Mutnick argues that Clearview AI conspired with state actors to violate his federally protected rights and Clearview AI is a liable private party under a “joint participation” theory.In the second lawsuit, the plaintiff, Illinois resident Anthony Hall, asserts several state law claims on behalf of a class of Illinois residents. Hall alleges that Clearview AI’s unauthorized webscraping and sale of its software give rise to a common law conversion claim and violate the <a href="http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2356&ChapterID=67" target="_blank" rel="noopener">Illinois Consumer Fraud and Deceptive Business Practices Act</a>.Additionally, both Mutnick and Hall also allege multiple violations of the <a href="http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3004&ChapterID=57" target="_blank" rel="noopener">Illinois Biometric Information Privacy Act</a>. This Illinois law: (1) prohibits private companies from collecting individual biometric data without first notifying the individual and obtaining their written consent; (2) limits the circumstances under which biometric data may be disclosed; and; (3) prohibits private entities from profiting from the biometric information. Under the statute, individuals have a private right of action to enforce the law against companies that violate it and may recover up to $5,000 for each intentional or reckless violation.The Illinois Biometric Information Privacy Act is currently the most stringent biometric privacy law in the United States, and it is the only biometric privacy law that provides a private right of action. It is a powerful statute.In the third lawsuit, the plaintiff, Virginia resident Shelby Roberson, asserts several state law claims. Roberson alleges that by scraping the class members’ images, Clearview AI violated several provisions off the <a href="https://law.lis.virginia.gov/vacode/title18.2/chapter5/section18.2-152.1/" target="_blank" rel="noopener">Virginia Computer Crimes Act</a>. She also alleges that Clearview AI’s use of the images violates <a href="https://law.lis.virginia.gov/vacode/title8.01/chapter3/section8.01-40/" target="_blank" rel="noopener">Va. Code § 8.01-40</a>, a state law provision that gives individuals the right to control the commercial use of their names and images.The outcome in each of these lawsuits remains to be seen, but given the privacy implications of Clearview AI’s software, it would be surprising if more parties don’t also assert claims against Clearview AI.<h5>Other Potential Claims of Unauthorized Webscraping Against Clearview AI</h5>The various social media sites from which Clearview AI took the photos that populate its database have tools at their disposal to combat unauthorized webscraping.<ul><li><a href="https://www.law.cornell.edu/uscode/text/18/1030" target="_blank" rel="noopener">Computer Fraud and Abuse Act:</a>(CFAA): The CFAA prohibits intentionally accessing a computer without authorization, or exceeding authorized access, and thereby obtaining information from any protected computer. The statute defines the term “computer” broadly enough to include all devices used to access social media websites. In some jurisdictions, <a href="https://casetext.com/case/ef-cultural-travel-bv-v-zefer-corp" target="_blank" rel="noopener">a webscraper may be subject to liability under the CFAA merely by breaching a website’s terms of use</a>. The Ninth Circuit, however, has recently <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/17-16783/17-16783-2019-09-09.html" target="_blank" rel="noopener">interpreted the scope of the CFAA more narrowly</a>. Whether the CFAA prohibits unauthorized webscraping is an issue that <a href="https://www.law360.com/articles/1237505/linkedin-will-go-to-supreme-court-over-data-scraping" target="_blank" rel="noopener">may end up in the Supreme Court</a>.</li><li>Trespass to chattels: This common law tort action provides redress for the unauthorized use or intermeddling with another’s personal property. Traditionally the claim required an actual physical trespass. However, <a href="https://casetext.com/case/ebay-v-bidders-edge">some jurisdictions</a> have found that <a href="https://casetext.com/case/registercom-inc-v-verio-inc" target="_blank" rel="noopener">exceeding the scope of consent of use of private computer servers may amount to trespass to chattels</a>.</li><li>Breach of Contract: Third parties who agree to the terms of use of a website, such as by clicking that they agree, may be liable for breach of contract where they violate those terms by scraping data from the site. Even if a webscraper has not affirmatively agreed to the terms of use, some courts have found that once that party is clearly informed of the terms of use by any means, such as through a cease and desist letter, continuing to violate those terms <a href="https://casetext.com/case/registercom-inc-v-verio-inc-2" target="_blank" rel="noopener">could provide the basis for a breach of contract claim</a>.</li><li>Copyright Infringement: The Copyright Act protects “<a href="https://www.law.cornell.edu/uscode/text/17/102" target="_blank" rel="noopener">original works of authorship fixed in any tangible medium of expression</a>” and the “<a href="https://www.law.cornell.edu/uscode/text/17/501" target="_blank" rel="noopener">legal or beneficial owner of an exclusive right under a copyright</a>” may sue for infringement when its copyrights are infringed. The photos that Clearview AI copies to populate its database are copyrightable works and scraping the images may amount to copyright infringement. Whether social media sites would have standing to assert copyright infringement claims against Clearview AI would depend on the agreement with their users, but even if the social media sites do not have standing as the legal or beneficial owner of the images, the users themselves may.</li></ul>These are only some of the tools available to social media sites to combat unauthorized webscraping by firms like Clearview AI. And when it comes to copying personal photos, even individuals outside Illinois who are not protected by the Illinois Biometric Information Privacy Act may have independent misappropriation or breach of privacy claims. As other states consider enacting or expanding data privacy and biometric privacy laws, the number of options available to challenge unauthorized webscraping will likely continue to grow. In the meantime, Clearview AI and the controversy surrounding it highlight how important it is to understand artificial intelligence and how it intersects with the law.

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

Wamai v. Industrial Bank of Korea , 2021 WL 3038402 

In re Maxus Energy Corp.

In re Energy Future Holdings Corp.

James Paul McCartney v. Sony/ATV Publishing LLC

NFL Enterprises LLC v. EchoStar Satellite LLC

VOOM HD Holdings LLC v. EchoStar Satellite LLC

Change Healthcare Operations, LLC v WebMD Health Corp. 2017 WL 6610411  

Register.com, Inc. v. Verio, Inc.

Komag, Inc. v. Asahi Glass Co. Ltd.

Asante Techs. Inc. v. PMC–Sierra, Inc.

Biovail Corp. v. S.A.C. Capital Mgmt. 2009 WL 2844404 

Multi–Faceted Investigation of University Grants

Confidential International Arbitrations

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Alex advises on all aspects of complex commercial litigation in federal and state trial and appellate courts and in arbitration. He has represented U.S. and international clients in actions involving 

J. Lawrence

J. Alexander Lawrence

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Clearview AI and the Legal Challenges Facing Facial Recognition Databases

Clearview AI and the Legal Challenges Facing Facial Recognition Databases

Every day, social media users upload millions of images to their accounts; each day 350 million photos are uploaded to Facebook alone. Many social media website

Here at Socially Aware we covered a wide range of issues in 2019. We reviewed an opinion reminding us that <a href="https://www.sociallyawareblog.com/2019/03/22/whats-in-a-username/" target="_blank" rel="noopener">user-generated content posted on social media platforms is not necessarily freely available for use in other contexts</a>, and a rare instance of a federal district court holding that <a href="https://www.sociallyawareblog.com/2019/11/04/just-browsing-district-court-finds-browsewrap-agreement-enforceable/" target="_blank" rel="noopener">a browsewrap agreement was enforceable</a>.We also examined some aspects of Internet law in Europe, including the legality of <a href="https://www.sociallyawareblog.com/2019/03/14/cookie-wall-legality-in-the-eu/" target="_blank" rel="noopener">using “cookie walls” in the European Union</a>, and the <a href="https://www.sociallyawareblog.com/2019/05/15/the-eu-copyright-directive-passes-but-member-states-remain-split-on-upload-filters/" target="_blank" rel="noopener">EU Copyright Directive’s impact</a> on content-sharing service providers’ liability for copyright-infringing content.And, as <a href="https://www.sociallyawareblog.com/2018/08/22/section-230-survives-to-fight-another-day-following-california-supreme-court-decision/">we’ve done in past years</a>, we revisited the scope of the “safe harbor” that Section 230 of the Communications Decency Act provides <a href="https://www.sociallyawareblog.com/2019/09/05/safe-harbor-in-section-230-of-the-communications-decency-act-applies-to-wide-variety-of-claims/" target="_blank" rel="noopener">again</a>, <a href="https://www.sociallyawareblog.com/2019/07/17/federal-circuit-holds-that-section-230-locks-out-locksmiths/" target="_blank" rel="noopener">again</a>, and <a href="https://www.sociallyawareblog.com/2019/04/30/appeals-court-upholds-section-230-protections-in-case-against-grindr/" target="_blank" rel="noopener">again</a>.But none of those topics—except the CDA’s Section 230—are on our list of the top-ten most read articles of 2019. Here are the pieces that made the cut:<ol><li><a href="https://www.sociallyawareblog.com/2019/09/11/general-audience-google-youtube-to-pay-170-million-for-alleged-coppa-violations/" target="_blank" rel="noopener">The Company Who Cried “General Audience”: Google and YouTube to Pay $170 Million for Alleged COPPA Violations</a></li><li><a href="https://www.sociallyawareblog.com/2019/04/05/how-to-comply-with-the-revised-ephemeral-messaging-provision-in-the-fcpas-corporate-enforcement-policy/" target="_blank" rel="noopener">How to Comply with the Revised Ephemeral-Messaging Provision in the DOJ’s Corporate Enforcement Policy</a></li><li><a href="https://www.sociallyawareblog.com/2019/08/02/by-winning-motion-to-dismiss-supermodel-loses-chance-to-clarify-whether-she-can-lawfully-post-photos-of-herself-to-social-media/" target="_blank" rel="noopener">By Winning Motion to Dismiss, Supermodel Loses Chance to Clarify Whether She Can Lawfully Post Photos of Herself to Social Media</a></li><li>Will the Music Industry Continue To Win Its Copyright Battle Against ISPs?</li><li><a href="https://www.sociallyawareblog.com/2019/03/06/copyright-infringement-on-user-generated-platforms-when-is-the-platform-provider-liable-for-damages/" target="_blank" rel="noopener">Time to Hit Pause: Copyright Infringement on User-Generated Platforms – When Is the Platform Provider Liable for Damages?</a></li><li><a href="https://www.sociallyawareblog.com/2019/08/20/the-meme-generation-social-media-platforms-address-content-curation/" target="_blank" rel="noopener">The Meme Generation: Social Media Platforms Address Content Curation</a></li><li><a href="https://www.sociallyawareblog.com/2019/07/23/court-holds-that-arbitration-clause-in-hybridwrap-terms-is-unenforceable/" target="_blank" rel="noopener">Court Holds That Arbitration Clause in “Hybridwrap” Terms Is Unenforceable</a></li><li><a href="https://www.sociallyawareblog.com/2019/10/09/insta-mural-infringement-public-art-in-instagram-ad-leads-to-copyright-claim/" target="_blank" rel="noopener">Insta-Mural Infringement: Public Art in Instagram Ad Leads to Copyright Claim</a></li><li><a href="https://www.sociallyawareblog.com/2019/06/27/california-court-finds-section-230-protects-decision-to-suspend-and-ban-twitter-account/" target="_blank" rel="noopener">California Court Finds Section 230 Protects Decision to Suspend and Ban Twitter Account</a></li><li><a href="https://www.sociallyawareblog.com/2019/09/17/ninth-circuits-linkedin-decision-does-not-greenlight-the-unauthorized-web-scraping-of-public-websites/" target="_blank" rel="noopener">Ninth Circuit’s LinkedIn Decision Does Not Greenlight the Unauthorized Web Scraping of Public Websites</a></li></ol>

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2019: Our Greatest Hits

Here at Socially Aware we covered a wide range of issues in 2019. We reviewed an opinion reminding us that user-generated content posted on social media platfor

2019: Our Greatest Hits

For the last twenty years, the music industry has been in a pitched battle to combat unauthorized downloading of music. Initially, the industry focused on filing lawsuits to shut down services that offered peer-to-peer or similar platforms, such as <a href="https://www.copyright.gov/fair-use/summaries/a&mrecords-napster-9thcir2001.pdf" target="_blank" rel="noopener">Napster</a>, Aimster and <a href="https://supreme.justia.com/cases/federal/us/545/913/" target="_blank" rel="noopener">Grokster</a>. For a time, the industry started <a href="https://money.cnn.com/2003/09/08/technology/riaa_suits/" target="_blank" rel="noopener">filing claims against individual infringers</a> to dissuade others from engaging in similar conduct. Recently, the industry has shifted gears and has begun to focus on Internet Service Providers (ISPs), which provide Internet connectivity to their users.The industry’s opening salvo against ISPs was launched in <a href="https://arstechnica.com/tech-policy/2014/11/music-publishers-finally-pull-the-trigger-sue-an-isp-over-piracy/" target="_blank" rel="noopener">2014 when BMG sued Cox Communications</a>, an ISP with over three million subscribers. BMG’s allegations were relatively straightforward. BMG alleged that Cox’s subscribers are engaged in rampant unauthorized copying of musical works using Cox’s internet service, and Cox did not do enough to stop it. While the DMCA provides safe harbors if an ISP takes appropriate action against “repeat infringers,” BMG alleged that Cox could not avail itself of this safe harbor based on its failure to police its subscribers.In December 2015, the BMG v. Cox case went to the jury and resulted in a <a href="https://www.reuters.com/article/us-cox-copyright/cox-found-liable-in-piracy-dispute-with-music-publisher-idUSKBN0U02OD20151217" target="_blank" rel="noopener">verdict in favor of BMG</a>. The jury found that Cox’s subscribers had used its service to infringe copyrighted works, and while the jury held that Cox was not liable under a theory of vicarious liability, it was <a href="http://www.project-disco.org/intellectual-property/180205fourth-circuit-decision-cox-v-bmg-provides-clarity-contributory-infringement/" target="_blank" rel="noopener">liable under a theory of contributory infringement</a> for the acts of its subscribers. The <a href="https://www.hollywoodreporter.com/thr-esq/music-publisher-gets-25-million-849829" target="_blank" rel="noopener">jury awarded $25 million in statutory damages</a> to BMG.With the playbook in hand, the music industry has sought to replicate BMG’s success in the Cox case. Record labels have filed a number of additional cases against ISPs alleging they are secondarily liable for the direct copyright infringement of their subscribers under both contributory and vicarious liability theories.<ul><li>In April 2017, a number of record labels filed an <a href="https://dockets.justia.com/docket/texas/txwdce/1:2017cv00365/873439" target="_blank" rel="noopener">action against Grande Communications, a Texas based ISP, in the Western District of Texas</a>. The case is currently scheduled for a jury trial in early 2020.</li><li>In July 2018, a number of record labels (excluding BMG, which had already prevailed against Cox) filed a <a href="https://www.courtlistener.com/docket/7586228/sony-music-entertainment-v-cox-communications-inc/" target="_blank" rel="noopener">follow-on case against Cox in the Eastern District of Virginia based on their own copyrights</a>. The case is currently on the rocket docket moving toward a jury trial in December 2019.</li><li>In March 2019, a number of record labels filed <a href="https://www.courtlistener.com/docket/14785219/warner-records-inc-v-charter-communications-inc/" target="_blank" rel="noopener">an action in the District of Colorado against Charter Communications</a>, one of the largest ISPs in the United States, with more than 22 million subscribers. The case is currently scheduled for a jury trial in November 2020.</li><li>In March 2019, a number of record labels also filed <a href="https://dockets.justia.com/docket/florida/flmdce/8:2019cv00710/361725" target="_blank" rel="noopener">an action in the Middle District of Florida against Bright House Networks LLC</a>, which is now a subsidiary of Charter but was previously one of the top ten ISPs in the country. The case is currently scheduled for a jury trial in early 2021.</li><li>In August 2019, a number of record labels filed <a href="https://www.courtlistener.com/docket/16121275/umg-recordingsinc-v-rcn-telecom-services-llc/">an action in the District of New Jersey against RCN</a>, which is a smaller ISP that provides internet services to customers throughout a number of major metropolitan regions in the United States, including New York, Chicago, Boston, Philadelphia, and Washington D.C. RCN has not yet responded to the complaint, and no trial date has been set.</li></ul>While so far the music industry has had success in these cases, including in establishing liability for contributory copyright infringement in the first Cox case, <a href="https://www.techdirt.com/articles/20180923/12051040696/court-shoots-down-record-labels-attempt-to-expand-definition-vicarious-infringement.shtml" target="_blank" rel="noopener">the industry has been unsuccessful in establishing vicarious liability</a>. In addition to evidence of direct infringement by the subscriber, vicarious infringement would <a href="https://www.law.cornell.edu/wex/vicarious_infringement" target="_blank" rel="noopener">require</a> establishing that the ISP has: (1) the right and ability to supervise the infringing activity, and (2) a direct financial interest in the activity. In these ISP cases, the direct financial interest factor would be the more difficult factor to establish in that ISPs charge infringing and non-infringing subscribers the same amount for the service.Although BMG prevailed in the BMG v. Cox case, the jury rejected BMG’s vicarious infringement claim. Post-trial, BMG moved for judgment as a matter of law on its vicarious infringement claim, and while upholding BMG’s overall win, the district court rejected BMG’s motion for judgment as a matter of law on that claim. The <a href="https://www.leagle.com/decision/infdco20160810c69" target="_blank" rel="noopener">district court held</a> there was substantial evidence supporting the jury’s finding that Cox did not have “an obvious and direct financial interest” in the infringing activity.In the UMG v. Grande Communications case, the district court dismissed the record labels’ vicarious infringement claim, <a href="https://casetext.com/case/umg-recordings-inc-v-grande-commcns-networks-llc" target="_blank" rel="noopener">holding</a> they had “failed to plead facts showing that Grande receives a direct financial benefit from its subscribers’ infringing conduct.”In the Sony v. Cox case, Cox has moved for summary judgment on the record labels’ vicarious infringement claims, but the district court has not yet issued a decision.In both the Warner Bros. v. Charter and the UMG v. Bright House cases, the defendant ISPs filed motions to dismiss the record labels’ vicarious infringement claims clearly feeling they had strong grounds for dismissal. The <a href="https://www.docketbird.com/court-documents/Umg-Recordings-Inc-et-al-v-Bright-House-Networks-Llc/MOTION-to-Dismiss-Plaintiffs-Claim-for-Vicarious-Liability-by-Bright-House-Networks-LLC/flmd-8:2019-cv-00710-00032" target="_blank" rel="noopener">Bright House motion to dismiss</a> remains pending, but the <a href="https://www.courtlistener.com/docket/14785219/71/warner-records-inc-v-charter-communications-inc/" target="_blank" rel="noopener">magistrate judge recently issued a decision on Charter’s motion to dismiss</a>. This time, things did not go well for the ISP on the vicarious infringement question.In rejecting Charter’s motion to dismiss, the magistrate judge first addressed whether Charter has a direct financial interest in the alleged infringement by its subscribers. Charter argued that the subscription fees it charges infringing users constitute only an “indirect benefit” and that “the infringing activity must be more than an ‘added benefit’ to a subscription; it must be the attracting factor, the ‘draw’ for subscribers.” The magistrate judge held that the record labels allege that Charter’s “failure to stop or take other action in response to notices of infringement is a draw to current and prospective subscribers to purchase and use [its] internet service to ‘pirate’ [the record label’s] copyrighted works.” On this basis, the magistrate judge held that the record labels had adequately alleged that Charter has a direct financial interest in the alleged infringement by its subscribers.With respect to the right and ability to supervise the infringing activity, the magistrate judge found that the record labels had made a sufficient showing because Charter “can stop or limit the infringing conduct by terminating its subscribers’ internet access.”It is notable that the Charter decision is at the motion to dismiss stage where the required showing is low. It is a magistrate judge’s decision, and Charter has objected to the decision, so it will be subject to review by the district court.  Thus, Charter may still prevail on the motion to dismiss, obtain dismissal of the vicarious liability claim on summary judgment after discovery, or perhaps ultimately prevail at trial. Also, Charter may be able to establish that it is subject to the DMCA safe harbor and thus avoid a damage award altogether. Nonetheless, the decision is still a notable victory in the music industry’s ongoing battle with ISPs. With so many cases pending, we will see whether the music industry continues to prevail in its effort to hold ISPs liable for their subscribers’ infringement.

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Will the Music Industry Continue To Win Its Copyright Battle Against ISPs?

Will the Music Industry Continue To Win Its Copyright Battle Against ISPs?

For the last twenty years, the music industry has been in a pitched battle to combat unauthorized downloading of music. Initially, the industry focused on filin

As regular readers of Socially Aware already know, there are many potential traps for companies that use photographs or other content without authorization from the copyright owners. For example, companies have faced copyright infringement claims based on <a href="https://www.sociallyawareblog.com/2013/02/15/thinking-about-using-pictures-pulled-from-twitter-think-again-new-york-court-warns/" target="_blank" rel="noopener">use of photos</a> pulled from Twitter. Claims have even arisen from the common practice of <a href="https://www.sociallyawareblog.com/2018/03/12/social-links-inline-linking-to-tweet-containing-photo-could-constitute-copyright-infringement-proposed-california-legislation-could-restrict-website-operators-efforts-to-have-minors-consent/" target="_blank" rel="noopener">embedding tweets</a> on blogs and websites, and we have seen a <a href="https://www.buzzfeednews.com/article/claudiarosenbaum/celebrities-sued-paparazzi-photos-social-media" target="_blank" rel="noopener">flurry of stories</a> recently about photographers suing celebrities for posting photos of themselves.Now there is another potential source of liability: the appearance of murals in the background of photographs used in advertisements. In at least two recent cases, automotive companies have faced claims of copyright infringement from the creators of murals painted on buildings that appear in the backgrounds of ads.Most recently, in a federal district court in the <a href="https://casetext.com/case/mercedes-benz-usa-v-lewis" target="_blank" rel="noopener">Eastern District of Michigan</a>, Mercedes Benz sought a declaratory judgment that its photographs, taken in Detroit (with permits from the city) and later posted on Instagram, did not infringe the copyrights of three defendants whose murals appeared in the backgrounds of those photographs.Almost exactly one year prior, a federal court in the <a href="https://www.ipwatchdog.com/wp-content/uploads/2018/09/GM-SJ-granted-denied.pdf" target="_blank" rel="noopener">Central District of California</a> decided a case in which an artist, Adrian Falkner, alleged that General Motors infringed his copyright in a mural located on a parking garage. General Motors had placed a newspaper ad for a Cadillac that contained portions of the mural, along with the Detroit skyline, in the background.Both of these cases turned largely on whether the photographs at issue qualified for application of <a href="https://www.law.cornell.edu/uscode/text/17/120" target="_blank" rel="noopener">17 U.S.C. § 120(a)</a>, which creates an exception to the copyright protection otherwise afforded to architectural works and expressly permits making, distributing and publicly displaying pictures, paintings, photographs or other representations of architectural works if the building in which the work is embodied is located in or ordinarily visible from a public place.Both cases also cite the <a href="https://law.justia.com/cases/federal/appellate-courts/F3/232/1212/514910/" target="_blank" rel="noopener">Ninth Circuit’s opinion in Leicester v. Warner Brothers</a>, which held that a pictorial, graphic or sculptural work that is “part of” an architectural work qualifies for 17 U.S.C. § 120(a). Interestingly, however, the results in the two cases diverged.In <a href="https://casetext.com/case/mercedes-benz-usa-v-lewis" target="_blank" rel="noopener">Mercedes Benz</a>, the Michigan district court denied the artist defendants’ motion to dismiss Mercedes’ declaratory judgment action. The court noted without explanation that Leicester supported Mercedes’ contention that the murals fell within 17 U.S.C. § 120(a), at least with respect to the particular pictorial representation of the buildings on which the murals appeared. The court distinguished the matter at hand from a case where a pictorial or graphic work is “divorced from the context of the building in which it was embodied.”The California district court in <a href="https://www.ipwatchdog.com/wp-content/uploads/2018/09/GM-SJ-granted-denied.pdf" target="_blank" rel="noopener">Falkner</a>, however, came to a somewhat different conclusion. Relying on the Ninth Circuit’s analysis in Leicester, the court found on a motion for summary judgment that it could not conclude as a matter of law that the mural was “part of” the parking garage on which it appeared because the mural was “not designed to appear as a part of the building” or serve a functional purpose related to the building, and was made separately at the discretion of the artist after the parking garage had been built. The case later <a href="https://www.courtlistener.com/docket/6706417/adrian-falkner-v-general-motors-company/" target="_blank" rel="noopener">settled</a>.These cases leave somewhat ambiguous the factors that determine whether a mural is to be considered “part of” a building, so that photographs of the mural qualify for 17 U.S.C. § 120(a) protection. Nevertheless, companies should be aware that the use of images that show murals or other works of public art, even if they only appear in the background, may face copyright claims from the owners of those works.

Insta-Mural Infringement: Public Art in Instagram Ad Leads to Copyright Claim