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

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Does a search engine operator have to delist websites hosting, without authorization, your trade secret materials or other intellectual property? The answer may depend on where you sue—just ask Google. The U.S. District Court for the Northern District of California <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=http://jolt.law.harvard.edu/digest/google-v-equustek-united-states-federal-court-declares-canadian-court-order-unenforceable&httpsredir=1&article=2589&context=historical" target="_blank" rel="noopener">recently handed the company a victory</a> over plaintiff Equustek Solutions Inc. in what has turned into an international battle where physical borders can have very real consequences on the Internet.The dispute began when a rival company, Datalink, allegedly misappropriated Equustek’s trade secrets in developing competing products. Equustek also alleged that Datalink misled customers who thought they were buying Equustek products. In 2012, Equustek obtained numerous court orders in Canada against Datalink. Datalink refused to comply, and Canadian court issued an arrest warrant for the primary defendant, who has yet to be apprehended.In September 2012, Equustek asked Google to delist search results for Datalink; Google declined this request. Equustek then sought a court order against Google in Canada and prevailed, resulting in Google removing 300 Datalink websites from search results generated by the Canadian version of its site, located at <a href="http://www.google.ca" target="_blank" rel="noopener">www.google.ca</a>. Google, however, did not take similar steps with respect to U.S. and other non-Canadian versions of its site, so the Datalink websites continued to appear in search results conducted by users outside of Canada.Equustek returned to the Canadian court, this time to seek an order compelling Google to remove the Datalink-related search results globally so that Datalink results would not appear for any Google users, regardless of their location. Equustek once again prevailed, and Google appealed to the Court of Appeal for British Columbia. That court, and later the Supreme Court of Canada, affirmed the trial court’s order.Google then brought the battle to the United States; in July 2017, it commenced an action in the U.S. District Court for the Northern District of California seeking a declaratory judgment that the Canadian court order cannot be enforced in the United States and an injunction against the enforcement of such order. (Equustek did not submit an opposition brief.)In support of its preliminary injunction motion, Google’s primary arguments were that the Canadian order (1) ignores the Communication Decency Act’s immunity for interactive service providers (2) directly conflicts with the First Amendment and (3) violates principles of international comity.In evaluating Google’s motion, a significant portion of the court’s analysis addressed the likelihood of Google’s success on the merits. The court focused on <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">Section 230 of the Communications Decency Act</a>, which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Citing the Ninth Circuit’s <a href="http://caselaw.findlaw.com/us-9th-circuit/1493375.html" target="_blank" rel="noopener">en banc decision</a> in the Roommates.com case, the court noted that Section 230 “immunizes providers of interactive computer services against liability arising from content created by third parties.”The court found that Google met all three requirements to qualify for Section 230 immunity. First, the court noted that there is no question as to whether Google is a “provider” or an “interactive computer service,” citing previous cases that had so held and noting that the term “interactive computer service” can mean any information service, system or access software provider that allows multiple users to access a computer server.Second, the court noted that the way that Google’s web caching and search result aggregation process works makes it such that Datalink—and not Google—is the entity “providing” the information in question. The court characterized Google’s role as that of a passive intermediary providing access to the material in question.Finally, the court found that enforcement of the Canadian order would hold Google liable as “publisher or speaker” of the infringing material on Datalink’s websites. The court quoted the Supreme Court of Canada’s justification for the order, which characterized Google as “the determinative player in allowing the harm to occur,” and observed that the Ninth Circuit considers any claim requiring an intermediary to remove third-party content as treating that intermediary as a publisher.Turning to the remaining three factors for granting a preliminary injunction—irreparable harm, balance of the equities and the public interest—the court sided with Google on all three factors.It found that depriving Google of Section 230 protection harmed Google, and that the balance of equities favors Google because the injunction would deprive it of the benefits of U.S. federal law.It also noted that granting Google’s requested injunction would serve the public interest in that it would be in keeping with Congress’s finding that tort liability for websites’ hosting third-party content would severely limit free speech on the Internet. The court pointed out that Section 230 was specifically enacted in service of this proposition and underscored the fact that a strong policy in favor of fostering free speech online would be hampered by holding Google responsible for the third-party material it displays in its search results.According to the court, “The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites . . . [and] undermines the policy goals of Section 230 and threatens free speech on the global internet.”The court’s decision highlights the power of the Section 230 safe harbor and its critical role in facilitating the free flow of information online. However, if we step back to look at the larger issue, the Google-Equustek dispute—having generated conflicting court decisions in Canada and the United States—suggests that we may be moving toward an increasingly patchwork Internet rather than the borderless, monolithic information superhighway of the past few decades.In the near future, what you see online may depend on where you live.Further, as the Internet becomes more Balkanized, we may see situations where the strictest, most burdensome portion of the patchwork seeks to force all of the others to follow in its stead. Case in point: Europe’s emerging “right to be forgotten.” At first, in response to EU consumers seeking to exercise this right, Google had offered to scrub relevant search results from EU-versions of its website, but, following continued pressure from the EU, it agreed to filter the results shown to EU residents regardless of which version of the Google site they searched (so that, for example, Google.com would show the same scrubbed results to an EU resident as Google.fr). <a href="https://www.theguardian.com/technology/2016/may/19/google-right-to-be-forgotten-fight-france-highest-court" target="_blank" rel="noopener">According to France</a>, however, this arrangement is still not enough, and Google should scrub the results globally—even for users who reside in the many countries that do not recognize the right to be forgotten.What comes of this fight has yet to be known, but what is unmistakable is the slow and steady shift to an Internet that differs across borders. As this shift continues, U.S. laws aimed at facilitating online speech—such as Section 230 and the DMCA’s copyright safe harbors—are increasingly likely to butt heads with other countries’ laws seeking to regulate and even censor online speech.*          *          *For other Socially Aware blog posts regarding the CDA Section 230 safe harbor, please see the following: <a href="https://www.sociallyawareblog.com/2018/03/15/lawsuit-against-online-dating-app-grindr-dismissed-under-section-230-of-the-communications-decency-act/" target="_blank" rel="noopener">Lawsuit Against Online Dating App Grindr Dismissed Under Section 230 of the Communications Decency Act</a>; 2018: Predictions From Socially Aware’s Editors and Contributors; Snapchat Clocks Section 230 Win in Speed Filter Case; <a href="https://www.sociallyawareblog.com/2016/12/15/the-decline-and-fall-of-section-230/" target="_blank" rel="noopener">The Decline and Fall of Section 230?</a>; <a href="https://www.sociallyawareblog.com/2016/12/05/manchanda-v-google/" target="_blank" rel="noopener">In a Rough Year for CDA Section 230, Manchanda v. Google Provides Comfort to Website Operators</a>; and <a href="https://www.sociallyawareblog.com/2016/11/22/yelp-section-230-still-has-teeth/" target="_blank" rel="noopener">Yelp Case Shows CDA §230 Still Has Teeth</a>.

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The Coming Border Wars: U.S. Court Decision Refusing to Enforce Canadian Court Order Highlights the Growing Balkanization of the Internet

The Coming Border Wars: U.S. Court Decision Refusing to Enforce Canadian Court Order Highlights the Growing Balkanization of the Internet

Does a search engine operator have to delist websites hosting, without authorization, your trade secret materials or other intellectual property? The answer may

Section 230 of the Communications Decency Act continues to act as one of the strongest legal protections that social media companies have to avoid being saddled with crippling damage awards based on the misdeeds of their users.The strong protections afforded by Section 230(c) were recently reaffirmed by Judge Caproni of the Southern District of New York, in <a href="https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2017cv00932/468549/21/" target="_blank" rel="noopener">Herrick v. Grindr</a>. The case involved a dispute between the social networking platform <a href="https://www.grindr.com/" target="_blank" rel="noopener">Grindr</a> and an individual who was maliciously targeted through the platform by his former lover. For the unfamiliar, Grindr is mobile app directed to gay and bisexual men that, using geolocation technology, helps them to connect with other users who are located nearby.Plaintiff Herrick alleged that his ex-boyfriend set up several fake profiles on Grindr that claimed to be him. Over a thousand users responded to the impersonating profiles. Herrick’s ex‑boyfriend, pretending to be Herrick, would then direct the men to Herrick’s’ work-place and home. The ex-boyfriend, still posing as Herrick, would also tell these would-be suitors that Herrick had certain rape fantasies, that he would initially resist their overtures, and that they should attempt to overcome Herrick’s initial refusals. The impersonating profiles were reported to Grindr (the app’s operator), but Herrick claimed that Grindr did not respond, other than to send an automated message.Herrick then sued Grindr, claiming that the company was liable to him because of the defective design of the app and the failure to police such conduct on the app. Specifically, Herrick alleged that the Grindr app lacked safety features that would prevent bad actors such as his former boyfriend from using the app to impersonate others. Herrick also claimed that Grindr had a duty to warn him and other users that it could not protect them from harassment stemming from impersonators.Grindr moved to dismiss Herrick’s suit under <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">Section 230 of the Communications and Decency Act</a> (CDA). Section 230 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.” In order for the Section 230 safe harbor to apply, the defendant invoking the safe harbor must prove each of the following: (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.”With respect to each of the numerous different theories of liability asserted by Herrick—other than the claim of copyright infringement for hosting his picture without his authorization—the court found that either Herrick failed to state a claim for relief or the claim was subject to Section 230 immunity.Regarding the first prong of the Section 230 test, the court swiftly rejected Herrick’s claim that Grindr is not an interactive computer service as defined in the CDA. The court held that it is a distinction without a difference that the Grindr service is accessed through a smart phone app rather than a website.With respect to Herrick’s products liability, negligent design and failure to warn claims, the court found that they were all predicated upon content provided by another user of the app, in this case Herrick’s ex-boyfriend, thus satisfying the second prong of the Section 230 test. Any assistance, including algorithmic filtering, aggregation and display functions, that Grindr provided to the ex was “neutral assistance” that is available to good and bad actors on the app alike.The court also found that the third prong of the Section 230 test was satisfied. For Herrick’s claims to be successful, they would each result in Grindr being held liable as the “publisher or speaker” of the impersonating profiles. The court noted that liability based upon the failure to incorporate adequate protections against impersonating or fake accounts is “just another way of asserting that Grindr is liable because it fails to police and remove impersonating content.”Moreover, the court observed that decisions to include (or not) methods of removal of content are “editorial choices” that are one of many functions of being a publisher, as are the decisions to remove or not to remove any content at all. So, because choosing to remove content or to let it stay on an app is an editorial choice, finding Grindr liable based on its choice to let the impersonating profiles remain would be finding Grindr liable as if it were the publisher of that content.The court further held that liability for failure to warn would require treating Grindr as the “publisher” of the impersonating profiles. The court noted that the warning would only be necessary because Grindr does not remove content and found that requiring Grindr to post a warning about the potential for impersonating profiles or harassment would be indistinguishable from requiring Grindr to review and supervise the content itself. Reviewing and supervising content is, the court noted, a traditional role for publishers. The court held that, because the theory underlying the failure to warn claims depended upon Grindr’s decision not to review impersonating profiles before publishing them—which the court described as an editorial choice—liability would depend upon treating Grindr as the publisher of the third-party content.In holding that Herrick failed to state a claim for failure to warn, the court distinguished the Ninth Circuit’s 2016 decision, <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/31/12-56638.pdf" target="_blank" rel="noopener">Doe v. Internet Brands, Inc</a>. In that case, an aspiring model posted information about herself on a networking website, <a href="https://www.modelmayhem.com/" target="_blank" rel="noopener">ModelMayhem.com</a>, that is directed to people in the modeling industry and hosted by the defendant. Two individuals found the model’s profile on the website, contacted the model through means other than the website, and arranged to meet with her in person, ostensibly for a modeling shoot. Upon meeting the model, the two men sexually assaulted her.The court viewed Internet Brands’ holding as limited to instances in which the “duty to warn arises from something other than user-generated content.” In Internet Brands, the proposed warning was about bad actors who were using the website to select targets to sexually assault, but the men never posted their own profiles on the site. Also, the website operator had prior warning about the bad actors from a source external to the website, rather than from user-generated content uploaded to the site or its review of site-hosted content.In contrast, here, the court noted, the Herrick’s proposed warnings would be about user-generated content and about Grindr’s publishing functions and choices, including the choice not to take certain actions against impersonating content generated by users and the choices not to employ the most sophisticated impersonation detection capabilities. The court specifically declined to read Internet Brands to hold that an ICS “could be required to publish a warning about the potential misuse of content posted to its site.”In addition to claims for products liability, negligent design and failure to warn, the court also dismissed Herrick’s claims for negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, fraud, negligent misrepresentation, promissory estoppel and deceptive practices. While Herrick was granted leave to replead a copyright infringement claim based on allegations that Grindr hosted his photograph without his authorization, the court denied Herrick’s request to replead any of the other claims.When Congress enacted Section 230 of the CDA in 1996, it sought to provide protections that would permit online services to thrive without the threat of crippling civil liability for the bad acts of its users. Over 20 years since its passage, the Act has indisputably served that purpose. The array of social media and other online services and mobile apps available today could have barely been imagined in 1996 and have transformed our society. It is also indisputable, however, that for all of the invaluable services now available to us online and through mobile apps, these same services can be seriously misused by wrongdoers. Providers of these services will want to study closely the Herrick and Internet Brands decisions and to keep an eye out for further guidance from the courts regarding the extent to which Section 230 does (Herrick) or does not (Internet Brands) shield providers from “failure to warn” claims.*          *          *For other Socially Aware blog posts regarding the CDA Section 230 safe harbor, please see the following: 2018: Predictions From Socially Aware’s Editors and Contributors; <a href="https://www.sociallyawareblog.com/2017/02/08/snapchat-section-230-speed-filter-case/" target="_blank" rel="noopener">Snapchat Clocks Section 230 Win in Speed Filter Case</a>; <a href="https://www.sociallyawareblog.com/2016/12/15/the-decline-and-fall-of-section-230/" target="_blank" rel="noopener">The Decline and Fall of Section 230?</a>; <a href="https://www.sociallyawareblog.com/2016/12/05/manchanda-v-google/" target="_blank" rel="noopener">In a Rough Year for CDA Section 230, Manchanda v. Google Provides Comfort to Website Operators</a>; and <a href="https://www.sociallyawareblog.com/2016/11/22/yelp-section-230-still-has-teeth/" target="_blank" rel="noopener">Yelp Case Shows CDA §230 Still Has Teeth</a>.

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Associate

Janie Buckley is a Litigation  associate in Morrison Foerster’s New York office.
Ms. Buckley earned her J.D. magna cum laude from New York  University School of Law and was elected to the Order of t

Janie Buckley

Janie C. Buckley

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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Lawsuit Against Online Dating App Grindr Dismissed Under Section 230 of the Communications Decency Act

Lawsuit Against Online Dating App Grindr Dismissed Under Section 230 of the Communications Decency Act