There are several alternative tests for gauging “substantial similarity” in copyright cases. The flagship test is the “ordinary observer” test, but variations include the (baffling) extrinsic/intrinsic test and the abstraction-filtration-comparison test. With respect to sampling sound recordings, the Sixth Circuit’s…

Why does the Ninth Circuit find Section 230 so baffling? Several of its precedential Section 230 rulings have been angst-fests. Roommates.com required a 3 opinion ruling from a 3 judge panel, then an internally inconsistent en banc ruling, then a…

By now you’ve heard that Peter Thiel, a well-known Silicon Valley billionaire, has been waging a lawfare campaign against Gawker. The New York Times described his modus operandi: he retained a legal team to watch for cases against Gawker, then…

The Copyright Office has issued a Notice of Proposed Rulemaking (NPRM) regarding a new electronic submission process for websites and online services to designate agents to receive 512(c)(3) copyright takedown notices. The agent designation process is crucial to the 17…

You’d probably be hopping mad if Google manually kicked your website out of its search index; and if you’re an SEO company and Google also kicked all of your clients out, you’d probably feel pretty litigious. But courts have repeatedly…

'Badass Lawyer' Loses Lawsuit Over Parody Twitter Account--Levitt v. Felton

This is an awesome parody account/First Amendment case. Todd Levitt is a self-described “badass lawyer” (this description comes from his since-deleted Twitter account) and an adjunct instructor at Central Michigan University (CMU). His Twitter account looked interesting, to say the…

Will the Spokeo v. Robins Supreme Court Ruling Favor Plaintiffs Or Defendants? Uh...

The Supreme Court issued its opinion in Spokeo v. Robins. A six Justice majority reversed the Ninth Circuit’s decision on the basis that the Ninth Circuit did not sufficiently consider whether Mr. Robins’s alleged harms were “concrete.” On the question…

The nominative use doctrine allows third party references to trademark owners using the trademarks they chose as their preferred descriptors. Without a robust and well-functioning nominative use doctrine, trademark owners can have too much control over their brands–they can shut…

In April, I gave a talk at the University of Sussex on Section 230 as economy policy by encouraging consumer reviews that improve marketplaces. If this sounds vaguely familiar, you’re not imagining things. I’ve been working on this paper since…

Uber allegedly has over 300,000 drivers. In a population that large, inevitably some bad apples will do stupid or illegal things. Uber tries to curb such behavior by doing background investigations (which it has also been sued for) and removing…