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

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CHARACTER.AI SUED IN TWO STATESCharacter Technologies has been hit with two lawsuits, including a wrongful death suit (among other claims), in less than two months over its popular Character.ai chatbot. The first was filed in the U.S. District Court for the Middle District of Florida (<a href="https://d34mgxl0pedajf.cloudfront.net/wp-content/uploads/2024/10/FILED-COMPLAINT_Garcia-v-Character-Technologies-Inc-1.pdf" target="_blank">Garcia v. Character Technologies Inc.</a>) by the mother of a Florida teenager who <a href="https://www.fastcompany.com/91215310/character-ai-app-lawsuit-legal-complaint-teen-suicide-chatbot-google" target="_blank">tragically committed suicide</a> after the chatbot allegedly encouraged the child to do so. The Plaintiff claims her son became instantly addicted to Character.ai and “fell in love” with the bot, leading to drastic behavioral changes such as sleep deprivation, school-related issues, and low self-esteem, which culminated in the child’s death. Just a few weeks later, two plaintiffs in Texas <a href="https://www.documentcloud.org/documents/25450619-filed-complaint/" target="_blank">filed suit</a> alleging that Character.ai <a href="https://www.npr.org/2024/12/10/nx-s1-5222574/kids-character-ai-lawsuit" target="_blank">abused the plaintiffs’ children</a> by exposing them to hypersexualized content, encouraging self-harm, and suggesting they should kill their parents. Both suits allege that the Character.ai chatbot is intentionally designed in a way that exploits minors by simulating human interaction, creating emotional dependence, and failing to implement safeguards against misuse. Given that these are the first major cases to seek damages related to anthropomorphized AI tech, it will be interesting to see whether juries find Character.ai liable, as this could spawn waves of similar lawsuits.MAJOR RECORD LABELS PETITION SUPREME COURT OVER VERDICT REVERSALThree of the world’s largest entertainment companies—Sony Music, Warner Music, and Universal Music—have <a href="https://tmsnrt.rs/3SX6Do2" target="_blank">petitioned the U.S. Supreme Court</a> to reconsider an appellate ruling that wiped out a $1 billion jury verdict in their suit against internet service provider Cox Communications. In 2019, a <a href="https://www.reuters.com/article/lifestyle/cox-to-pay-1-billion-to-music-labels-publishers-over-piracy-infringement-idUSKBN1YO0DE/" target="_blank">Virginia jury</a> found Cox liable for rampant music piracy by the company’s customers and failure to act despite receiving thousands of infringement notices. The verdict was <a href="https://business.cch.com/ipld/SonyMusicEntmtCoxComms4C20240220.pdf" target="_blank">overturned</a> earlier this year by the U.S. Court of Appeals for the 4th Circuit, which confirmed the jury’s finding of willful contributory infringement, but called for a new trial on damages because Cox did not directly profit from the piracy. Unsurprisingly, the plaintiffs appealed, and it appears the Supreme Court is poised to take the case. In a <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24-181.html" target="_blank">one-sentence order</a>, the High Court has invited the solicitor general to file a brief expressing the views of the United States. This is a strong indication that the Court is interested in hearing the case. With a new administration set to take the reins in Washington next month, it seems likely that appellate attorney <a href="https://www.scotusblog.com/2024/11/trump-taps-lawyer-who-argued-his-immunity-case-for-solicitor-general/" target="_blank">D. John Sauer</a> will be solicitor general. Sauer’s disposition toward IP cases is tough to predict, as his work has largely focused on hot-button social issues. A brief in the case may give insight into Sauer’s positions on copyright law and corporate liability.X CLAIMS OWNERSHIP OF ALEX JONES ACCOUNTThe asset liquidation of Alex Jones’s <a href="https://storage.courtlistener.com/recap/gov.uscourts.txsb.459750/gov.uscourts.txsb.459750.882.0_1.pdf" target="_blank">intellectual</a> and tangible property in the bankruptcy proceeding following the $1.5 billion <a href="https://www.statesman.com/story/news/politics/state/2024/06/06/timeline-lawsuits-alex-jones-sandy-hook-shooting-infowars-false-claims/73985486007/" target="_blank">defamation judgment</a> against him has hit an unusual speedbump. At issue is Jones’s X account. With its 3.4 million followers, the account is among the highest-profile IP assets on the auction block. But here’s the thing: X has <a href="https://storage.courtlistener.com/recap/gov.uscourts.txsb.459750/gov.uscourts.txsb.459750.937.0.pdf?ref=404media.co" target="_blank">filed an objection</a> claiming that the account belongs to it, not Jones, and is therefore exempt from an asset sale. This raises several interesting questions and a judgment either way could have wide-ranging implications for all social media platforms. Though X’s <a href="https://x.com/en/tos" target="_blank">Terms of Service</a> state that users maintain ownership of “any Content you submit, post or display on or through the Services,” the terms do not explicitly define who actually owns the account. An ownership argument in this context is unusual. We’ve been <a href="/topics/owned-second-circuit-holds-that-traditional-principles-of-property-law-apply-to-social-media-accounts" target="_blank">covering</a> social media account ownership issues <a href="/topics/social-links-social-media-account-ownership-once-again-in-the-spotlight" target="_self">for years</a> and in the majority of cases the conflict is between employee/employer or company/consultant. X may very well prevail in this action. Users own their content, but the account itself will likely be seen as an extension of a user’s license to access and use the platform’s services. We’ll be following this one very closely.X LAWSUIT AGAINST ISRAELI DATA SCRAPING FIRM REVIVEDIt appears that Israeli firm Bright Data will be back in court facing an amended version of a complaint from X that was <a href="https://casetext.com/case/x-corp-v-bright-data-ltd-1" target="_blank">dismissed last May</a>. As we <a href="/topics/california-federal-court-holds-x-s-claims-against-scraper-preempted-by-federal-law" target="_self">reported in June</a>, X alleged that Bright Data’s scraping and selling of data from X violated the social media giant’s Terms of Service and the U.S. District Court for the Northern District of California held that X’s claims were preempted by federal copyright law. Though the court declined to allow amendments related specifically to Bright Data’s scraping operations, it granted X’s motion for leave to amend the company’s trespass to chattels claims and fraudulent business acts allegations. Judge William H. Alsup ruled that X’s updated complaint sufficiently alleges that Bright Data improperly accessed X’s servers, writing: “X Corp. newly alleges that scrapers traverse the X service in patterns markedly different from humans or authorized machines, that scrapers thus use underlying server capacity in abnormal proportions, and that this results in intermittent, isolated server failures and a ‘glitchy, lagged user experience’ for X’s human users.” Judge Alsup added that X also properly alleged that if it hadn’t purchased “millions of dollars of server capacity,” the alleged scraping would have resulted in “catastrophic system failures,” concluding that, with these revised allegations, “X Corp.’s proposed complaint now sufficiently alleges server impairment from scrapers accessing its service. . . Bright Data does not contest that if X Corp. states trespass to chattels as to data scrapers, it plausibly does so as to Bright Data, too. This order will assume as much.” You can read Judge Alsup’s thorough, and surprisingly entertaining, <a href="https://www.courtlistener.com/docket/67637345/156/x-corp-v-bright-data-ltd/" target="_blank">ruling</a>. Now that this case is set to move forward, we’ll see if it will have wider implications on the legalities of data scraping and platform protection.META PREVAILS IN IMMUNITY SUITUniversity of Massachusetts Amherst professor <a href="https://en.wikipedia.org/wiki/Ethan_Zuckerman" target="_blank">Ethan Zuckerman</a> has lost his bid for immunity from potential lawsuits alleging breach of contract and violation of federal criminal computer fraud laws related to his “Unfollow Everything 2.0” browser extension. The extension is designed to allow users to turn off the newsfeeds assembled for them by Facebook’s algorithms with one click, blocking unwanted content and advertisements. Unfollowing functionality is already in place on Facebook but requires unfollowing groups and pages individually. In the <a href="https://casetext.com/case/zuckerman-v-meta-platforms-inc" target="_blank">November 22 ruling</a>, Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California wrote that Zuckerman’s “alleged injury is too contingent upon uncertain events to satisfy the constitutional ripeness requirement” and that the request for relief is too speculative because Zuckerman has not actually released the browser extension. Last May, Zuckerman filed a <a href="https://knightcolumbia.org/documents/gu63ujqj8o" target="_blank">preemptive suit</a> against Meta requesting immunity under Section 230, asking the court to declare that his extension would not violate Facebook’s <a href="https://www.facebook.com/legal/terms?_rdr" target="_blank">Terms of Service</a> or federal computer fraud laws, but this action was also rejected. The current case was dismissed without prejudice, so Zuckerman could refile it if he ever releases the Unfollow Everything 2.0 extension, but after two court losses, he faces significant headwinds.UBER’S ARBITRATION CLAUSE UPHELD BY APPEALS COURTIn a <a href="https://aboutblaw.com/bgm7" target="_blank">5–2 decision</a>, the New York Court of Appeals has ruled that a plaintiff’s legal claims against Uber must go through arbitration—even though her action was currently pending before a court. The ruling stems from a November 2020 lawsuit brought by plaintiff Emily Wu, who originally agreed to a prior version of Uber’s Terms of Service without mandatory arbitration. Uber amended its <a href="https://www.uber.com/legal/en/document/?name=general-terms-of-use&country=united-states&lang=en" target="_blank">Terms of Service</a> in January 2021, updating its mandatory arbitration clause, which Wu agreed to.At the heart of the case is the plaintiff’s argument that the arbitration clause should not apply to claims pending in court, even though the amended Terms of Service purported to apply to “any claims” without limitation. Among other things, Wu claimed that Uber’s notice to Wu violated <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/" target="_blank">Rule 4.2 of the Rules of Professional Conduct</a> for attorneys, which bars the other party in a pending lawsuit from directly contacting a party they know is represented by counsel. The Court of Appeals <a href="https://www.reuters.com/legal/government/column-uber-clickwrap-contract-gets-blessing-nys-top-court-theres-twist-2024-11-26/" target="_blank">disagreed with Wu</a>, maintaining that (a) a mass email notification sent by Uber clearly explained there would be changes to the arbitration agreement and that Wu entered into a contract when she agreed to the revised terms; (b) Uber did not know that Wu was represented by counsel when it sent the mass notice; and (c) even if the claim had merit, Wu’s requested remedies were too extreme and she did not even ask for the more targeted and sensible remedy of simply voiding the arbitration agreement and allowing the dispute to move forward in court.In his majority opinion, Judge Anthony Cannataro wrote, “For essentially as long as there have been written contracts, parties have entered them without first carefully reviewing their terms. That failure can have legal consequences, whether the party is a sophisticated entity or an ordinary consumer, and whether the contract is presented on paper or through an electronic pop-up window.”

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.

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











Anthony Ramirez

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

Character Technologies has been hit with two lawsuits, including a wrongful death suit (among other claims), in less than two months over its popular Character.ai chatbot. The first was filed in the U.S. District Court for the Middle District of Florida (Garcia v. Character Technologies Inc.) by the mother of a Florida teenager who tragically committed suicide after the chatbot allegedly encouraged the child to do so. 

FAKE REVIEW RULES TAKE EFFECTThe Federal Trade Commission’s new rules banning phony online reviews are now in effect. These rules aim to curb false consumer testimonials, the buying of fake reviews from brokers, review suppression, falsifying social media influence, and misrepresentation of company ownership for review sites. As <a href="/topics/social-links-recent-developments-in-the-law-and-business-of-social-media" target="_self">we reported</a> last August, fake and bot-generated reviews have proliferated at an alarming rate, potentially leading to consumer cynicism, mistrust, and unfair competition. These <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/r311003consumerreviewstestimonialsfinalrulefrn.pdf" target="_blank">new FTC rules</a> have some teeth: non-compliance could result in a $51,744 fine for each violation. It remains to be seen how e-commerce behemoths that host tens of millions of online reviews will navigate compliance, but it’s probably a safe bet there will be some late nights for IT personnel in Seattle and Mountain View. <a href="https://www.ftc.gov/news-events/news/press-releases/2024/08/federal-trade-commission-announces-final-rule-banning-fake-reviews-testimonials" target="_blank">FTC chair Lina Khan said</a>, “Fake reviews not only waste people’s time and money, but also pollute the marketplace and divert business away from honest competitors. [The rule will] protect Americans from getting cheated, put businesses that unlawfully game the system on notice, and promote markets that are fair, honest, and competitive.” It will be interesting to see what e-commerce and review sites look like in six months.MASS. SUPREME COURT RULES IN FAVOR OF MEDICAL DATA TRACKINGThe Supreme Judicial Court of Massachusetts <a href="https://www.reuters.com/legal/transactional/web-browsing-tracking-doesnt-violate-massachusetts-wiretap-law-court-rules-2024-10-24/" target="_blank">has ruled</a> that website tracking software does not run afoul of the <a href="https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1284#:~:text=1968%2C%20(Pub.-,L.,wiretapping%20by%20government%20officials%2C%20and" target="_blank">1968 Wiretap Act</a>, and sites can continue tracking browser activity without the consent of the user. The <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/lbpgjobqqvq/10242024sjc_wiretap.pdf" target="_blank">5–1 ruling</a> maintains that two hospitals named in the action—Beth Israel Deaconess Medical Center and New England Baptist Hospital—were not breaking the law by collecting and sharing patient data with tracking sites. The plaintiff alleged that the collected data allowed tech companies to profit from private medical data without consent.Writing for the majority, Judge Scott Kafker noted that the 1968 Wiretap Act does not apply to website operators who track data from those who visit, and the law’s legislative history does not lead to the conclusion that it was meant to apply so broadly as to potentially criminalize the interception of web browsing. He added, “If the legislature intends for the wiretap act’s criminal and civil penalties to prohibit the tracking of a person’s browsing of, and interaction with, published information on websites, it must say so expressly.”In a strongly worded dissent, Judge Dalila Wendlandt argued that the Wiretap Act’s prohibition on electronic surveillance does apply to browser tracking because, despite the implied privacy of the hospitals’ online communications, third parties were allowed to track and record patients’ healthcare information. She wrote, “The court decides that the wiretap act provides no recourse despite its prohibition on surreptitious electronic surveillance by private parties. Lamentably, the court is right about one thing; the Legislature will need to correct today’s error.”With hundreds of <a href="https://www.reuters.com/legal/transactional/massachusetts-top-court-considers-allowing-website-tracking-class-actions-2024-04-03/" target="_blank">similar cases</a> filed across the country, this ruling is unlikely to be the final word.LAWSUIT AGAINST X THROWN OUT IN DRAMATIC FASHIONFormer Twitter (now X) executive Mark Schobinger’s attempt to gain class status in a suit over unpaid bonuses <a href="https://www.courthousenews.com/former-twitter-employees-denied-class-action-certification-in-bonuses-suit/" target="_blank">failed in spectacular fashion</a> in a San Francisco courtroom this month. In a <a href="https://www.courthousenews.com/wp-content/uploads/2024/10/schobinger-vs-twitter-order-denying-motion-class-certification.pdf" target="_blank">scathing order</a>, U.S. District Judge Vince Chhabria wrote that Schobinger “might fit nicely into this case as a defendant,” adding that the suit “reflects remarkable hubris.” The crux of Judge Chhabria’s order comes down to one simple thing—hypocrisy. It turns out that Schobinger himself was a leading advocate for not paying out the very bonuses he is now seeking when he was Twitter’s senior director of compensation. Discovery in the case revealed a litany of messages, emails, and alleged conversations in which Schobinger aggressively lobbied against the bonus payments. Schobinger’s attorney attempted a last-minute swap to bring in a new, untainted plaintiff, but Judge Chhabria stuck to the dance-with-who-brung-ya protocol, saying: “The fact that Schobinger’s lawyer thought it was a good idea to file a motion for class certification in the face of this evidence (as opposed to dropping the case or seeking to substitute another plaintiff immediately upon discovering it) shows that she is totally unqualified to serve as class counsel.” No word yet on whether any <a href="https://youtu.be/DGuOUJ132bU?si=jXRkCGU-0IYlsANt" target="_blank">gavels were broken</a>.ALEX JONES SET TO LOSE IP RIGHTS AND SOCIAL MEDIA ACCOUNTSConspiracy peddler Alex Jones’s social media accounts and IP rights are <a href="https://www.msn.com/en-in/entertainment/oscars/blow-for-alex-jones-as-judge-rules-on-how-he-ll-pay-sandy-hook-victims/ar-AA1rc6WL?apiversion=v2&noservercache=1&domshim=1&renderwebcomponents=1&wcseo=1&batchservertelemetry=1&noservertelemetry=1" target="_blank">likely to be sold</a> to the highest bidder in an effort to pay down the nearly $1.5 billion in defamation judgments levied against him for repeatedly calling the tragic 2012 Sandy Hook school shooting a hoax. Jones’s assets are currently controlled by a court-appointed trustee after he <a href="https://www.reuters.com/world/us/alex-jones-files-bankruptcy-following-sandy-hook-verdict-court-filing-2022-12-02/" target="_blank">filed for bankruptcy</a> shortly following the judgment. Many of his tangible assets (including his Infowars studio) are already slated to be auctioned off, but it’s possible the IP assets and social media accounts will prove more valuable at auction. Jones and his legal team maintain that his personal social media accounts are not subject to liquidation and cannot be disentangled from his name, likeness, or image. As one of the <a href="https://youtu.be/_V1vacCrFNs?si=vV9bVHQq9VF1PH1a">least sympathetic defendants</a> in recent memory, Jones faces serious headwinds in his attempt to retain assets.TIKTOK SUFFERS ANOTHER COURT LOSSSocial media juggernaut TikTok’s bid for an en banc panel rehearing has been shot down by the Third Circuit. The action stems from an <a href="https://www.sociallyawareblog.com/topics/social-links-tinder-tiktok-and-the-copacabana" target="_blank">August decision</a> in which the court ruled TikTok and its parent company, ByteDance, <a href="https://cases.justia.com/federal/appellate-courts/ca3/22-3061/22-3061-2024-08-27.pdf?ts=1724792413" target="_blank">were not protected</a> under <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank">Section 230</a> of the Communications Decency Act in the tragic death of a 10-year-old child. TikTok argued that the panel’s August decision went against 30 years of precedent involving Section 230. The court disagreed, citing the U.S. Supreme Court’s <a href="https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf" target="_blank">Moody v. Netchoice LLC</a> decision in finding that the app’s algorithm qualifies as “expressive content.” The ruling revives a lawsuit by the deceased child’s mother against TikTok, which had been <a href="https://www2.ca3.uscourts.gov/opinarch/223061p.pdf" target="_blank">dismissed in January</a> by the U.S. District Court on Section 230 grounds. This ruling has wide implications for social media companies and is likely to be appealed to the U.S. Supreme Court. We’ll keep a close eye on this one.

Double-check before swiping right. Ubiquitous dating app Tinder scored a court victory when the U.S. District Court in New Jersey ruled in <a href="https://law.justia.com/cases/federal/district-courts/new-jersey/njdce/2:2023cv23115/537965/12/" target="_blank">Ciapinska v. Tinder</a> that the arbitration clause in the app’s terms of use (TOU) is binding. At the center of the suit is Tinder’s <a href="https://www.help.tinder.com/hc/en-us/articles/360034941812-Photo-Verification" target="_blank">photo verification</a> process. The plaintiff <a href="https://bronx.news12.com/elmwood-park-nj-woman-suing-tinder-claims-photos-being-used-fake-accounts" target="_blank">brought the action in late 2023</a> when she discovered that a number of fake accounts, which had passed Tinder’s verification protocol, were using her photos – even though she left the platform in 2019. In the ruling, Judge Jamal K. Semper wrote, “[Plaintiff] created numerous accounts and even purchased a subscription indicating sufficient opportunity to consult and assent to the TOU before continuing to use the platform.” Tinder maintains that its verification tool is not a guarantee.TikTok finds itself facing a federal lawsuit over the <a href="https://www.independent.co.uk/news/world/americas/crime/tiktok-blackout-challenge-nyla-anderson-b1980820.html" target="_blank">tragic death</a> of a ten-year-old girl who passed away while attempting the viral “blackout challenge.” The challenge dares users to choke themselves to unconsciousness and stream the act on TikTok. The deaths of <a href="https://www.bloomberg.com/news/features/2022-11-30/is-tiktok-responsible-if-kids-die-doing-dangerous-viral-challenges" target="_blank">more than a dozen children</a> have been linked to the viral trend. TikTok parent company ByteDance maintained that Section 230 immunized it from liability, but <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/mopaqabzypa/08272024tiktok.pdf" target="_blank">three federal judges disagreed</a>. U.S. Circuit Judge Patty Shwartz wrote that Section 230 only immunizes information provided by third parties, not recommendations that TikTok itself made via an algorithm underlying its platform, adding: “TikTok makes choices about the content recommended and promoted to specific users, and by doing so, is engaged in its own first-party speech.” This begs a question: Does any effort to curate the presentation of third-party content automatically make it first-party content and therefore not protected under Section 230?Dupe.com, a startup search tool that scrapes the web for knockoff versions of name-brand products at steep discounts, is <a href="https://www.bloomberglaw.com/public/desktop/document/WilliamsSonomaIncvCarrotCartIncdbaDupecomDocketNo124cv06597SDNYAu?doc_id=X1965IOOO1191OA3O1STJOT2OF2" target="_blank">being sued</a> by home retail colossus Williams-Sonoma. The complaint, which was filed in the U.S. Court for the Southern District of New York, maintains that <a href="https://dupe.com/" target="_blank">Dupe.com</a> illegally used furniture images made by the Williams-Sonoma creative team to promote its online search tool and craft social media ads disparaging the William-Sonoma family of brands. The lawsuit asserts claims for copyright infringement, false advertising, unfair competition, and deceptive trade practices. With the <a href="https://businessofhome.com/articles/furniture-dupes-kim-kardashian-donald-judd-knockoffs#:~:text=Dupe.com%20can%20absolutely%20be,nothing%20clandestine%20about%20that%20functionality." target="_blank">proliferation of dubious online retailers</a> offering counterfeit versions of premier products, we’ll be watching this litigation closely.A <a href="https://www.dailycal.org/news/state/sb-976-approved-aims-to-protect-kids-from-social-media-addiction/article_59dd5e9c-6a6d-11ef-b6f1-87863c2fb22d.html" target="_blank">California bill</a> designed to stop social media companies from using algorithms to target minors has passed the state legislature and is headed to Governor Gavin Newsom’s desk. The legislation is similar to laws <a href="https://www.democratandchronicle.com/story/news/2024/06/10/ny-passes-ban-on-addictive-social-media-for-children-how-it-works/74043024007/" target="_blank">recently passed in New York</a> and could mark the beginning of a significant shift in social media policy across the United States. If the Governor signs <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240SB976" target="_blank">the bill</a>, social media companies would be prohibited from providing an algorithm-driven social media feed to anyone younger than eighteen in the state of California. It would also ban social media notifications during school hours and at night without prior parental consent. Proponents of the bill feel legislation is necessary to protect children, while critics maintain the law will be difficult to enforce and could be susceptible to misuse.Everyone’s mom’s favorite soft rock icon, Barry Manilow, <a href="https://variety.com/2024/music/news/barry-manilow-sues-hipgnosis-unpaid-funds-1236129154/" target="_blank">has sued</a> Hipgnosis Songs Fund, a music IP investment and song management company that acquired the Manilow catalog in 2020. The suit alleges that Hipgnosis has not paid more than $1 million in contractually obligated bonus payments. Manilow sold the song catalog to Hipgnosis based on promises that the company would exploit social media and spark a <a href="https://www.tiktok.com/@dinandtonics/video/7375244202457845038" target="_blank">“Copacabana” dance trend</a> on TikTok. To the surprise of no one (except perhaps Mr. Manilow), this did not happen. Instead, Hipgnosis hemorrhaged cash after a number of <a href="https://www.forbes.com/sites/marisadellatto/2023/01/24/justin-bieber-sells-music-rights-for-over-200-million-to-hipgnosis-songs-capital/" target="_blank">high-profile catalog acquisitions</a> and was sold to Blackstone in July 2024. Social media and music streaming have confounded the old guard of the music industry as they’re eclipsed by younger, more tech-savvy artists who have a deeper understanding of the contemporary music business landscape. Despite the nearly identical names, Hipgnosis Songs Fund is not related to the art collective Hipgnosis that designed all your <a href="https://wimwords.com/the-hipgnosis-album-cover-gallery/" target="_blank">favorite 1970s album covers</a>.

Social Links: Tinder, TikTok, and the Copacabana

Social Links: Tinder, TikTok, and the Copacabana

Double-check before swiping right. Ubiquitous dating app Tinder scored a court victory when the U.S. District Court in New Jersey ruled in Ciapinska v. Tinder that the arbitration clause in the app’s terms of use (TOU) is binding.

In a rare example of bipartisan agreement, the dramatically named DEFIANCE (Disrupt Explicit Forged Images and Non-Consensual Edits) Act unanimously <a href="https://gizmodo.com/anti-deepfake-porn-bill-unanimously-passes-in-the-senate-2000479051" target="_blank">passed the Senate</a>. The bill allows victims of AI-generated deepfake pornography to sue anyone who knowingly creates, receives, or distributes such images. It only addresses civil liability and only applies to pornographic content, but we would not be surprised to see more expansive legislation in this area in the future.Utah’s stringent social media laws survived a court challenge when a federal judge <a href="https://www.ksl.com/article/51076729/federal-judge-dismisses-claim-in-lawsuit-against-utahs-social-media-laws" target="_blank">dismissed a claim</a> by NetChoice that the legislation was preempted by federal law under Section 230. The dismissal by U.S. District Judge Robert J. Shelby cited autoplay, seamless pagination, and notifications on minors’ accounts as outside the scope of Section 230. Utah has become a <a href="https://www.ksl.com/article/50846522/utah-residents-suing-state-over-soon-to-be-enacted-social-media-restrictions" target="_blank">flashpoint</a> in the debate over social media, its impact on children, and related First Amendment concerns.Meta has <a href="https://about.fb.com/news/2024/07/combating-financial-sextortion-scams-from-nigeria/" target="_blank">removed more than 60,000 accounts</a> involved in sexual extortion scams aimed predominantly at men in the United States. The accounts were based in the fraud hotbed of Nigeria and used sexually compromising photos—both real and fake—to blackmail victims. The vast majority of the now-deleted accounts were on Instagram, but Meta also deactivated more than 7,000 Facebook accounts, pages, and groups that offered advice (including scripts) on how to defraud people. Although mostly targeting adults, there were also attempts against minors, which Meta reported to the U.S. National Center for Missing and Exploited Children.In another uncharacteristically bipartisan vote, the <a href="https://www.nbcnews.com/politics/congress/senate-poised-pass-significant-child-online-safety-bills-decades-rcna164259" target="_blank">Senate voted 91-3 in favor</a> of the Children and Teens’ Online Privacy Protection Act (COPPA 2.0) and the Kids Online Safety Act (KOSA). This is significant legislation that would create a legal “duty of care” for social media companies to prevent and mitigate harm. Violators would be subject to penalties enforced by the Federal Trade Commission. Opponents argue that the bill’s definition of harm is too broad and could lead to censorship of content that promotes politically polarizing issues, gender equality, or abortion rights. The bill will now go to the House, where its passage is less certain. Should it pass, this legislation would dramatically impact the operations of social media companies. We’re watching this very closely.Red-hot AI startup Perplexity has <a href="https://www.msn.com/en-us/news/technology/nvidia-backed-perplexity-ai-inks-deal-with-publishers-to-put-ads-in-search-engine/ar-BB1qTjUy?ocid=BingNewsVerp" target="_blank">entered into agreements</a> with several major media companies including Time, Fortune, and Automattic (owner of WordPress). Perplexity will begin featuring its partners’ content in AI-assisted search results and providing a percentage of the ad revenue. This move is on the heels of plagiarism accusations by news organizations such as Forbes and Condé Nast, the latter of which <a href="https://www.engadget.com/conde-nast-has-reportedly-accused-ai-search-startup-perplexity-of-plagiarism-191639677.html" target="_blank">reportedly sent a cease and desist</a> letter to the startup.The US Copyright Office <a href="https://cointelegraph.com/news/us-copyright-office-reports-urgent-need-protection-ai-law-deepfakes" target="_blank">issued a report</a> calling on Congress to take urgent action on the distribution of unauthorized deepfakes. The report is a result of its 2023 initiative to examine the intellectual property implications of generative AI. The speed of technology has always challenged lawmakers to keep up with bad actors, but AI deepfake capability has moved at staggering speed. <a href="https://www.fastcompany.com/91165063/microsoft-white-paper-new-laws-ai-deepfakes-frauid" target="_blank">Microsoft</a> has also called for Federal legislation addressing deepfakes.

Social Links: July 2024

Section 230: 27 Years Old and Still in the SpotlightIn our fourth installment of our six-part series examining Section 230—the segment of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from content created by third parties—we’ll examine some of the more contemporary judicial, legislative, and executive responses to the Act. Read our <a href="/topics/part-1-section-230-27-years-old-and-still-in-the-spotlight" target="_self">first</a>, <a href="/topics/part-2-a-section-230-27-years-old-and-still-in-the-spotlight-" target="_self">second</a>, and <a href="/topics/part-3-section-230-27-years-old-and-still-in-the-spotlight" target="_self">third</a> installments of this series to bring you up to speed on the conversation so far.Section 230 in the age of social media and the rise of user-generated content (UGC)In tandem with the rise of social media and the proliferation of user-generated content, we have recently witnessed numerous Section 230 cases throughout various jurisdictions.In <a href="https://casetext.com/case/fed-agency-of-news-llc-v-facebook-inc-1" target="_blank">Federal Agency of News LLC v. Facebook, Inc</a>. (N.D. Cal. Jan. 13, 2020), a Northern California district court rejected the notion that political speech is not covered by Section 230 immunity. The case concerned Facebook’s removal of user content belonging to the <a href="https://federalnewsnetwork.com/" target="_blank">Federal Agency of News</a> (FAN), which was allegedly tied to Russian government agencies seeking to undermine U.S. institutions. Specifically, the court stated that “[i]mmunity under the Communications Decency Act does not contain a political speech exception . . . . No distinction is made between political speech and non-political speech.” The court ultimately dismissed FAN’s suit with prejudice.In another case involving Facebook—and a case of first impression for the Third Circuit—a district court ruled that Section 230 protects against state-law claims regarding rights of publicity. In <a href="https://casetext.com/case/hepp-v-facebook-inc" target="_blank">Hepp v. Facebook, Inc</a>. (E.D. Pa. June 5, 2020), Karen Hepp, a television news anchor for FOX, brought right of publicity claims against several social media platforms for unauthorized use of her image. The photo in question was taken by a security camera in an NYC convenience store and subsequently used in online ads for erectile dysfunction and dating websites. The court held that Hepp’s statutory and common law right of publicity claims, both based on state law, were covered by Section 230—and in doing so, the court rejected Hepp’s argument that those claims were within the exception described by Section 230(e)(2). That important exception states that intellectual property laws are unaffected by Section 230, but the court aligned itself with Ninth Circuit precedent in holding that only federal intellectual property claims qualify for the exception. In the court’s view, extending the exception to state law intellectual property claims “would fatally undermine the broad grant of immunity provided by the CDA.” As we <a href="/2021/12/21/facebook-rebrands-as-meta-disables-facial-recognition-capabilities/" target="_self">reported previously</a>, <a href="https://today.westlaw.com/Document/Iaf5326271d1d11ecbea4f0dc9fb69570/View/FullText.html?contextData=(sc.Default)&transitionType=Default&firstPage=true" target="_blank">the Third Circuit of the United States Court of Appeals recently dismissed the case</a>, citing that each of these companies were protected and had immunity under Section 230 of the Communications Decency Act 0f 1996 (CDA). Read the full opinion of <a href="https://law.justia.com/cases/federal/appellate-courts/ca3/20-2725/20-2725-2021-09-23.html" target="_blank">Hepp v. Facebook, No. 20-2725 (3d Cir. 2021).</a>Account terminations in the age of Section 230: Distributor vs. publisher role continues to raise issuesIn <a href="https://casetext.com/case/domen-v-vimeo-inc" target="_blank">Domen v. Vimeo, Inc</a>., (2d Cir. March 11, 2021), Domen, a Christian pastor, published 89 videos on Vimeo promoting “conversion therapy” that were later flagged by Vimeo as violating its policy against promotion of “Sexual Orientation Change Efforts (SOCE).” After a warning period, <a href="https://blog.ericgoldman.org/archives/2021/03/important-second-circuit-opinion-says-section-230c2a-protects-online-account-terminations-domen-v-vimeo.htm" target="_blank">Vimeo terminated Domen’s account</a>. Domen sued Vimeo for several claims, including on anti-discrimination grounds, arguing that Vimeo had “restricted and censored [his] videos because [they] were based on a viewpoint regarding sexual orientation and religion with which Vimeo disagrees.” The court dismissed Domen’s suit, on Section 230 and other grounds, finding that:<ul><li>Vimeo was acting as a publisher and therefore qualified for Section 230 immunity: “Plaintiffs are seeking to hold Vimeo liable for removing Plaintiffs’ own content . . . . Vimeo plainly was acting as a ‘publisher’ when it deleted (or, in other words, withdrew) Plaintiffs’ content on the Vimeo website”;</li><li>Domen had no argument that Vimeo was applying its policy in a discriminatory manner: “the purpose of Section 230 was to insulate interactive computer services from liability for removing some content, but not other content . . . . There simply are no substantive allegations to support the notion that Vimeo somehow was targeting Domen because he is a ‘former homosexual,’ as Plaintiffs posit”; and</li><li>The anti-discrimination claims independently failed because Domen didn’t allege that Vimeo had the requisite discriminatory intent.</li></ul>Domen filed for appeal and, in March 2021, the 2nd Circuit affirmed the district court’s ruling, noting that <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank">subsection (c)(2) of Section 230</a> is a broad provision that forecloses civil liability for providers that restrict access to content they consider objectionable. The court also held that Section 230 does not require the restriction to take any particular form, meaning that Vimeo’s removal of Domen’s account after providing a warning was acceptable.Section 230 in the age of the #MeToo movement: Allegations, backlash, and immunity clauses continue to challenge “third party content”A New York district court recently considered the application of Section 230 to non-traditional online publishers, in <a href="https://casetext.com/case/elliott-v-donegan" target="_blank">Elliott v. Donegan</a>, (E.D.N.Y. June 30, 2020). The defendant, Moira Donegan, had started an electronic list of men in the media business who had allegedly committed some form of sexual violence. She titled her list “Sh**ty Media Men” and stored it on a cloud-based, publicly accessible spreadsheet. The spreadsheet went viral, unleashing a swift flurry of allegations with some 70 named men implicated in the spreadsheet. Major media outlets were poised to publish related stories. Among the men named was the plaintiff, Stephen Elliott, who claimed that the allegations about him on the list were false, and sued Donegan and a number of Jane Does for defamation.Donegan claimed that third parties had posted the statements about Elliot, and that she was therefore immune under Section 230. 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, the court held that Donegan did qualify as an interactive computer service provider.But the court was unable to determine, at least from the face of the complaint, whether the spreadsheet and its material were “third party content.” According to the plaintiff’s allegations, the defendant herself had fabricated and entered the spreadsheet item about him. If those allegations were true, then Section 230 would not apply. Based on this uncertainty, the court refused to dismiss, holding that Section 230 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.”In part five of our series, we’ll continue to examine the criticism from both sides of the political aisle, as well as calls to reform or even repeal Section 230.

In our fourth installment of our six-part series examining Section 230—the segment of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from content created by third parties—we’ll examine some of the more contemporary judicial, legislative, and executive responses to the Act. Read our first, second, and third installments of this series to bring you up to speed on the conversation so far.

Part 4 – Section 230: 27 Years Old and Still in the Spotlight

<a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank">Section 230 of the Communications and Decency Act</a> provides broad immunity to online platforms for claims arising from hosting third-party content (though just how broad is a hot issue that the <a href="https://www.sociallyawareblog.com/topics/supreme-court-to-address-section-230-for-first-time" target="_blank">Supreme Court</a> may decide this term in <a href="https://www.scotusblog.com/case-files/cases/gonzalez-v-google-llc/" target="_blank">Gonzalez v. Google LLC</a> ). But Section 230(e) of the statute expressly excludes certain types of claims from the safe harbor, including “intellectual property” claims. Specifically, Section 230(e)(2) states “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.”However, even Section 230(e)(2)’s express statutory language has been a source of controversy, with some courts holding that it applies only to federal intellectual property claims, and others holding that it covers both federal and state claims. Just over a year ago, the Third Circuit in <a href="https://casetext.com/case/hepp-v-facebook-2?" target="_blank">Hepp v. Facebook</a> held that Section 230(e)(2) applies to both federal and state intellectual property claims, and that, accordingly, the Section 230 safe harbor did not bar a right of publicity claim under Pennsylvania law. The Ninth Circuit, on the other hand, held in <a href="https://casetext.com/case/perfect-10-inc-v-ccbill-llc-5?" target="_blank">Perfect 10, Inc. v. CCBill LLC</a> that Section 230(e)(2) applies only to federal intellectual property claims. Therefore, according to the Ninth Circuit, state law claims are not excluded from the safe harbor, and Section 230 did bar the plaintiff’s publicity rights claim under California law.Now we have a case from New York—<a href="https://casetext.com/case/ratermann-v-pierre-fabre-us-inc-4" target="_blank">Ratermann v. Pierre Fabre U.S., Inc</a>.—that puts a new spin on the issue by holding that Section 230(e)(2)’s intellectual property exception does not apply to a New York statutory right of publicity claim because such a claim is not an intellectual property claim at all. In Ratermann Judge Furman of the Southern District of New York held, as a matter of first impression, that publicity rights and privacy claims under <a href="https://www.nysenate.gov/legislation/laws/CVR/50" target="_blank">Sections 50</a> and <a href="https://www.nysenate.gov/legislation/laws/CVR/51" target="_blank">51</a> of the New York Civil Rights Law are not “intellectual property” claims and are, therefore, barred by Section 230 immunity.Plaintiff Patty Ratermann, a fashion model, signed a single-use license with defendant QuickFrame, giving QuickFrame the right to use her likeness on Instagram. Ratermann alleged that she later discovered her likeness being used to advertise defendant Pierre Fabre’s Avène products, without her knowledge or consent, on the Avène website, on the websites of defendants Amazon, Walmart, and Ulta, and in the stores of defendant Walgreens. Ratermann sued all the defendants, alleging, among other things, that they violated her right to privacy and/or publicity under Sections 50 and 51 of the New York Civil Rights Law.Amazon, Walmart, and Ulta moved to dismiss Ratermann’s suit under Section 230(c)(1), which provides that “no provider or users of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” A defendant is shielded from liability under Section 230 if the defendant can prove that: (1) it “is a provider . . . of an interactive computer service[;] (2) the claim is based upon information provided by another information content provider[;] and (3) the claim would treat the defendant as the publisher or speaker of that information.”Judge Furman concluded that all three elements of Section 230 were satisfied, but the analysis did not end there. As noted above, Section 230 includes certain exceptions, one of which is for “intellectual property” claims. Judge Furman held that Ratermann’s privacy/publicity claims under New York law did not fall within the intellectual property exception.Judge Furman reviewed New York state case law and concluded that “New York courts have long construed Sections 50 and 51 to provide a statutory right to privacy, not property” and that “the ‘right of publicity’ is encompassed under the Civil Rights Law as an aspect of the right of privacy.” Relying on New York state court’s decision in <a href="https://casetext.com/case/gautier-v-pro-football-inc-1?q=%22Gautier%20v.%20Pro-Football,%20Inc%22&jxs=ny&sort=relevance&p=1&type=case&resultsNav=false" target="_blank">Gautier v. Pro-Football, Inc.</a>, Judge Furman found that Sections 50 and 51 “created a limited right of privacy” and “provided primarily a recovery for injury to the person, not to his property or business.” Thus, he held that Amazon, Walmart, and Ulta were entitled to immunity under Section 230.As noted above, courts considering the application of Section 230 to similar laws in other states have come to different conclusions. For example, in <a href="https://casetext.com/case/hepp-v-facebook-2?" target="_blank">Hepp</a>, the plaintiff Karen Hepp, a news anchor, found that an image of her, taken without her knowledge or consent, was posted in advertisements on Facebook and other social media platforms. Hepp brought claims against Facebook and other social media companies for violation of her statutory right of publicity under Pennsylvania law. The Third Circuit held that the “ordinary legal meaning” of the term “intellectual property” includes the right of publicity. Therefore, Hepp’s claim fell within the Section 230(e)(2) exception and was not barred by Section 230. Both the Hepp court and the Raterman court cited <a href="https://casetext.com/case/zacchini-v-broadcasting-company?" target="_blank">Zacchini v. Scripps-Howard Broadcasting Co.</a>, a 1977 U.S. Supreme Court case, as support for their divergent conclusions.In Hepp, the Third Circuit cited Zacchini for the proposition that “the right of publicity is an individual property right that is ‘closely analogous to . . . patent and copyright’ because it focuses ‘on the right of the individual to reap the reward of his endeavors and [has] little to do with protecting feelings or reputation.’” Relying on Zacchini and a New Jersey case holding that the unauthorized use of Thomas Edison’s picture constituted an endorsement for a product he did not sell, the Third Circuit concluded that trademark and the right of publicity are “close analogues.” Therefore, the court held that the unauthorized use of Hepp’s likeness in online advertisements “misappropriated the effort she spent to build a valuable reputation, so it could confuse consumers by suggesting she endorses the service” in the advertisement.Although Judge Furman in Ratermann agreed that Zacchini stood for the proposition that the common law right of publicity is analogous to patent and copyright law, he concluded that the interests protected by Sections 50 and 51, the New York statute at issue, were “entirely distinct from” common law right of publicity claims. Judge Furman held that Zacchini expressly stated that “[t]he interest protected in permitting recovery [under the New York statute] is clearly that of reputation, with the same overtones of mental distress as in defamation.”Another notable difference between the two cases is the courts’ analysis of the New York and Pennsylvania statutes protecting a person’s right of publicity. In determining whether the right of publicity is an intellectual property right, Judge Furman did not discuss or refer to the statutory language of Sections 50 and 51. Rather, he focused on New York state court precedent interpreting Sections 50 and 51 and concluded that “these authorities leave no doubt that a claim under Sections 50 and 51 . . . sounds in privacy, not intellectual property.” In contrast, the Hepp court quoted the Pennsylvania statute’s language that provides a right of publicity cause of action for those whose likeness “is developed through the investment of time, effort, and money.” While Judge Furman held in Ratermann that Section 230(e)(2)’s intellectual property exception does not apply to claims under Sections 50 and 51, he did not reach the broader question of whether the intellectual property exception applies to state intellectual property claims at all. In contrast, the Ninth Circuit in <a href="https://casetext.com/case/perfect-10-inc-v-ccbill-llc-5?" target="_blank">Perfect</a> 10 held that, because Section 230 does not contain any express definition of “intellectual property,” the term “intellectual property” in Section 230(e)(2) must mean “federal intellectual property.” Although the <a href="https://casetext.com/case/comedy-iii-productions-v-gary-saderup-inc-2" target="_blank">California Supreme Court</a> has held that the right of publicity is a form of intellectual property, the Ninth Circuit reasoned that, because there is no uniform definition of “intellectual property” across the states and that content on a website may be viewed across the Internet in more than one state at a time, “permitting the reach of any particular state’s definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress’s expressed goal of insulating the development of the Internet from the various state-law regimes.”The Ratermann decision reminds us that, as the Internet continues to evolve, judicial construction of Section 230’s scope and limitations remains in flux. Nearly thirty years after Section 230 was enacted, courts continue to grapple with novel issues regarding its scope, including the scope of the “intellectual property” exception in Section 230(e)(2).

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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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J. Alexander Lawrence

COURT HOLDS THAT SECTION 230’S CARVE OUT FOR “INTELLECTUAL PROPERTY” DOES NOT APPLY TO PUBLICITY RIGHTS CLAIM IN NEW YORK