Internet Law Year-in-Review for 2020

February 15, 2021 · by · in Copyright, Derivative Liability, Internet History

[I know 2020 feels like it was 100 years ago, but I’ve been busy in 2021 so far. I did year-end roundups of developments in Section 230 and emoji law.] My top Internet Law developments from 2020:

8. TSPA/TSF Launch. The launch of the Trust & Safety Professional Association and Trust & Safety Foundation should have important long-term benefits for our industry. More about the organizations’ goals and history.

7. Internet Access Providers Face Ruinous Copyright Exposure. Following BMG v. Cox, copyright owners are notching troubling wins over IAPs for subscribers’ alleged copyright infringements. These lawsuits seek to coerce IAPs into terminating subscribers’ connectivity based on copyright owners’ unverified infringement allegations. If Congress pursues DMCA reform, 512(a) needs rehabilitation.

6. TikTok/WeChat Bans. Pres. Trump’s EOs against TikTok and WeChat were pure censorship. Not surprisingly, courts rejected them on statutory and constitutional grounds (1, 2, 3, 4). Nevertheless, the EOs normalized the efforts of other countries to censor the Internet and build digital fortresses at their geographic borders. Terrible.

5. Account Termination/Content Removal Lawsuits. “Conservatives” incorrectly believe that social media services are biased against them, and they are weaponizing numerous legal doctrines–the state action/public forum doctrine, civil rights anti-discrimination law, and more–to seek “must-carry” obligations. The Ninth Circuit emphatically rejected the state action argument in PragerU v. YouTube, and courts have rejected other must-carry arguments.

4. Social Media Services Remove Dubious Content. Social media services became more aggressive about restricting anti-social content that requires nuanced judgments, such as QAnon content, COVID misinformation, and election misinformation (especially Twitter’s fact-checks of Trump). The regulatory blowback threatens to destroy the Internet.

3. The CASE Act. The CASE Act creates a “copyright small claims court” which, to reduce costs, skimps on due process. We already have too much copyright trolling today (see, e.g., Liebowitz), and the new procedure will act as a trolling accelerant. If you are named in a proceeding, OPT-OUT.

2. The CCPA/CPRA. The CCPA’s rollout was delayed by the CA DOJ’s late rule-making, but it became fully enforceable in August. Yet, the CA DOJ hasn’t made any major public busts using the CCPA so far.

In November, Californians passed the CPRA. The CPRA cloned-and-revised the CCPA, but it didn’t incorporate any learnings from the CCPA (because it was drafted before the CCPA became law). The two standout CPRA “innovations” are (1) it creates a DPA-like entity that can prosecute violations in an administrative adjudication procedure, and (2) the legislature functionally cannot amend it.

Privacy law will only get worse until we get a federal preemptive law. That makes Congress our best hope for setting sensible privacy regulation–a discouraging prospect indeed.

1. Section 230 Saved Lives. The COVID-19 pandemic disrupted virtually every aspect of our lives in 2020 and killed hundreds of thousands of Americans. In a few chaotic days in mid-March, many key institutions–schools, employers, governments–closed their physical doors and switched to online operations. When our country needed it the most, the Internet rose to this challenge. The quick and effective shift to virtual interactions reinforced physical distancing, which reduced the virus’ spread and saved countless lives. The services that rescued us depend on Section 230–Zoom, online marketplaces, social media services, and many more. Congress will “reward” these services by reforming or repealing Section 230–a move that will put all of us at greater public health risks. 💯

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Other Developments of Note

  • EU Digital Services Act and Digital Single Market. When the E.U. finishes “fixing” the Internet, will anything be left?
  • Social Media Handles 2020 Elections Better. Social media services mishandled the 2016 elections, but they hardened their services to reduce the abuses in the 2020 elections.
  • Richard Liebowitz. Richard Liebowitz is operating the latest copyright litigation mill, but he keeps producing defense-favorable rulings. So…thank you?
  • Major Antitrust Lawsuits Against Google and Facebook. Antitrust law is the right tool to redress any abusive market behavior by Google and Facebook, but we’ll have to see if these lawsuits are more than just politics.
  • Instagram Embedding Cases. Can you embed an Instagram photo on your own site? ¯\_(ツ)_/¯
  • Videogames Depicting Real Life. Can a videogame depict a person’s tattoos? Probably, but we’re not sure.
  • Booking.com. It used to be clear that [noun].[tld] wasn’t registrable for the noun’s dictionary meaning. Now, it isn’t.
  • New Felony Streaming Crime. The new provisions target “digital transmission services” (“a service that has the primary purpose of publicly performing works by digital transmission”) that are designed, have no other purpose, or are marketed to engage in unauthorized public performances. Who satisfies this standard today? Would it have included YouTube at launch? I wonder if the DOJ will ever use this new provision.
  • The Trademark Modernization Act. This law reverses MercExchange v. eBay for trademarks and creates “a rebuttable presumption of irreparable harm upon a finding of a violation identified in this subsection in the case of a motion for a permanent injunction or upon a finding of likelihood of success on the merits for a violation identified in this subsection in the case of a motion for a preliminary injunction or temporary restraining order.”

Lists from Prior Years

Previous top 10 lists from 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007 and 2006. Before that, John Ottaviani and I assembled lists of top Internet IP cases for 2005, 2004 and 2003.

My 2020 Writings

Scholarship

Op-Eds and Interviews

Advocacy