Yearbook Defendants Lose Two More Section 230 Rulings

December 11, 2021 · by · in Content Regulation, Copyright, Derivative Liability, Publicity/Privacy Rights

2021 has seen the emergence of a litigation genre against “yearbook” database vendors that publish old yearbooks online. I’ve blogged three yearbook cases so far this year (Callahan v. Ancestry, Knapke v. Classmates, and Sessa v. Ancestry), and today I’ll blog two more. In the wake of the 2020 Lukis v. Whitepages decision, a more significant decision than I initially thought, the plaintiffs are making progress in the early rounds of their cases. In particular, they are having some success bending Section 230, and this genre offers some interesting considerations for folks paying attention to the privacy/230 borders.

Callahan v. PeopleConnect, Inc., 2021 WL 5050079 (N.D. Cal. Nov. 1, 2021)

This is the same Callahan from the Ancestry case. The court summarizes the plaintiffs’ allegations:

Plaintiffs give examples of how PeopleConnect has allegedly exploited their names, likenesses, and so forth for commercial purposes. For example, Plaintiffs allege as follows regarding Geoffrey Abraham. PeopleConnect has digital records related to Mr. Abraham that come from yearbooks. Users of Classmates.com can type Mr. Abraham’s name into a search bar. The search results provide a list of sixteen records associated with Mr. Abraham. “When users click to view any of the records corresponding to Mr. Abraham,…Classmates displays a page showing the photograph of Mr. Abraham and his name, accompanied by a link marked ‘Own this yearbook today,’ which leads to a page soliciting the purchase of the yearbook for $99.95.” As another example, when the search results provide the records associated with Mr. Abraham, “adjacent to the list of records containing [his] name, photograph, and likeness” is an advertisement promoting the subscription membership.

Section 230. The plaintiffs lost the Section 230 ruling in the Ancestry case, but the court says collateral estoppel doesn’t apply because the plaintiffs are appealing that ruling (?) and the Knapke and Sessa rulings reached different results.

The court sees this as a Batzel issue, saying: “there is a question of fact as to whether a reasonable person in the position of PeopleConnect (the service provider) would conclude that the yearbook authors/publishers (the information content providers) intended the yearbooks to be published on the internet.”

Notice how this legal standard skips a step in the publication process, because it was likely not the initial authors/publishers who submitted the yearbooks to PeopleConnect. Instead, it was likely either archives or individual yearbook owners who submitted it, but the court says they are not the creators/developers of the yearbook. The court is making a tricky statutory analysis;. While the submitters may not have created/developed the yearbook, they did create/develop the “submission” they made to PeopleConnect. This is why the judge applied Section 230 in the Callahan case. This court disagrees with the Callahan judge’s statutory reading.

As a result, this court implies that if a third-party poster isn’t the initial creator/developer of the content, then their submissions would never qualify for Section 230 protection if the identity divergence is “obvious” (as it apparently is here: “it is obvious that the yearbook users/purchasers were not the creators or developers of the yearbooks”). For example, if a third-party poster copies a newspaper article and posts it to their social media page, the court implies that the social media service can never assert Section 230 protection for that article–even if the third-party poster isn’t infringing copyright because of, say, fair use. This reimagining of Batzel conflicts with a LOT of Section 230 precedent and, I think, would seriously gut it if true. I’m keeping my fingers crossed this anomaly gets fixed somewhere in this litigation.

Copyright Preemption

The court says that the publicity rights claim isn’t preempted to the extent that “PeopleConnect is using their names and likenesses to advertise the subscription membership.” However, “case law weighs against Plaintiffs’ position that a defendant’s advertising of the copyrighted work itself would take the plaintiff’s § 3344 claim outside of copyright preemption. At bottom, a portion of the copyright work itself is being displayed, a fundamental attribute of a copyright.”

Statutory Publicity Rights Claim (3344)

“If a defendant uses a plaintiff’s name and/or likeness to advertise, then it can reasonably be inferred that the name and/or likeness has some economic value, even if small….Economic value may reasonably be inferred from PeopleConnect’s use of the images to advertise.” (Tautology alert).

As for statutory damages, “Section 3344 on its face does not require that a plaintiff have suffered mental anguish in order to be awarded statutory damages. Nevertheless, § 3344 does require that a plaintiff have suffered injury in order to be awarded damages, including statutory. Thus, as a practical matter, it is not difficult to imagine that a plaintiff seeking statutory damages will often have to rely on mental anguish as the hook for statutory damages.”

17200

The plaintiffs have to show that they lost money or property, and the court says they have: “their names and likenesses are intellectual property, and the underlying point of § 17204 is to make sure that a plaintiff has suffered an economic injury for purposes of standing. Here, Plaintiffs have alleged an economic injury; they were not paid – implicitly, by PeopleConnect – for the use of their names and likenesses.” (Tautology alert #2).

Intrusion into Seclusion

“publication of an image in a hardbound yearbook with limited distribution is one thing, but publication on the Internet for the world to see may be something else.” However, the court says the republication isn’t highly offensive to a reasonable person.

Now you can see why this case festered in my blog queue for 6 weeks. Blogging it has been rough! Phew.

Bonilla v. Ancestry.com Operations Inc., 2021 WL 5795306 (N.D. Ill. Dec. 7, 2021)

The allegations: “Ancestry uses Plaintiff’s name, photos, image, and likeness for a commercial purpose by selling access to his identity in its products. Ancestry’s Yearbook Database includes a record from a 1995 yearbook where Plaintiff attended school. This record is part of the database Ancestry uses to populate its promotional emails to potential customers.”

Section 230:

Plaintiff’s complaint includes allegations that Ancestry created records of Plaintiffs reflecting the information from the yearbook record, and uses that information to entice potential customers to subscribe to its services. Plaintiff also alleges that non-users are shown a limited version of the record (including a low resolution photograph) with a promotional pop-up advertisement promising access to Plaintiff’s identity and likeness if they sign up for a paid subscription. Ancestry recasts Plaintiff’s claims on the “mere reposting” of yearbook records, which is inconsistent with Plaintiff’s allegations that Ancestry uses those records and the likeness/identity to sell subscription services beyond his individual yearbook record. These allegations, taken as true, do not establish that Ancestry is a “passive conduit” that should receive immunity under the CDA. Plaintiff has alleged that Ancestry collected and organized records and subsequently used Plaintiff’s and the putative class members’ names, likenesses, and identities in these records they curated for commercial gain

Ugh. So many problems, including:

  • There’s no “passive conduit” prerequisite to Section 230.
  • “curating for commercial gain” is exactly what most Section 230-protected services do.
  • Section 230 applies when a service generates teaser promotional content from UGC. See, e.g., Roca Labs v. PissedConsumer (“tweeting a ‘teaser’ or preview of posts do not preclude Consumer Opinion and Opinion Corp. from asserting Section 230 immunity”). FWIW, I raised this issue as a possible paper topic in 2008.

Copyright Preemption

Plaintiff’s allegations concern the former, targeting the non-consensual use of his name and likeness in Ancestry’s advertisements and promotional materials for its paid subscription services. Plaintiff’s claim is not preempted by the Copyright Act at this stage of the pleadings because his allegations qualitatively distinguish his IPRA claim from the rights protected by the Copyright Act

Publicity Rights

The statutory exception for depicting people in literary and artistic works doesn’t apply to the associated ads (?).

Intrusion into Seclusion

“matters of public record like a name, address, date of birth, and marriage are not private facts that give rise to a claim.” The court also challenges if the intrusion was highly offensive and if the alleged damaged flowed from the intrusion as opposed to the republication.

Prior blog posts on Yearbook and Related Cases