This case is a different lawsuit against Classpass, this time over unredeemable Classpass credits. Despite the unmistakable message from the Ninth Circuit that TOS formation screens should be reviewed exactingly, Judge Orrick of the N.D. Cal. district seems to be living in the past. He surprisingly holds that Classpass successfully formed its TOS and sends the case to arbitration. Why did Classpass succeed here when it failed last year at the Ninth Circuit? (If you expect a logical and sensible answer to that question, you must be new to the blog).

* * *

The named plaintiff, Blackburn, navigated through three relevant TOS formation screens. The opinion never precisely identifies which one successfully formed the TOS. It seems like all three did?

(The TOS contained an arbitration clause that everyone agrees applies to this lawsuit if the TOS was properly formed).

Blackburn created her Classpass account in 2019 by navigating this screen and choosing the option to continue with her Facebook credentials (the 2019 Sign Up Screen):

A few days later, in the next screen, she acquired her subscription membership through Classpass’ refer-a-friend program (which entitled her to additional credits) (the 2019 Checkout Screen):

In 2023, Blackburn reactivated her Classpass membership by navigating this screen (the 2023 Reactivation Checkout Screen):

Everyone seems to accept the court’s characterization that all three screens are “sign-in-wraps.” That turns us over to the now-familiar three-part test for evaluating sign-in-wrap formation.

Element 1: Reasonably Conspicuous Notice

Blackburn challenged the 2019 Login Screen’s visibility on three grounds:

• It was part of a 5-screen signup sequence. The court responds “the screens are not cluttered and follow a logical flow.”
• The TOS offer was the smallest font size on the screen. The court says it was the same size as other fonts on the screen.
• The TOS offer language was below the “Continue with Facebook” button she clicked. The court says “the “Terms of Use” is bolded, underlined, and in traditional hyperlink blue. That offsets any real concern that a reasonably prudent Internet user would not know or be aware that those hyperlinks existed just below the “Continue with Facebook” button.”

The court is also OK with the 2019 Checkout Screen visibility. The court acknowledges the TOS offer language in grey font, but says the:

text is still visually set apart from the other font that appears on the screen, despite the fact that it does not appear in blue font….

the hyperlinks are denoted by a bolded light grey font and underline, sufficiently contrasting the white background. Further, the “large text block[]” to which Blackburn refers is actually a two-sentence paragraph separated in space by the one-sentence paragraph denoting the Terms of Use, which makes the presentation of the Terms of Use hyperlink even more noticeable

The court is similarly OK with the 2023 Reactivation Checkout Screen visibility:

The text referring to the Terms of Use is once again just above the commitment button, written in light grey, but bolded font, and while not denoted in traditional hyperlink blue, is set apart from the rest of the text on the screen such that its presence draws the eye. The primary difference between the 2023 Reactivation Checkout Screen and the 2019 Checkout Screen, as Blackburn points out, is that the 2023 Reactivation Checkout Screen includes a black and bolded pronouncement to the user that “you’ll automatically be charged for a full-priced monthly credit plan subscription” and includes, in blue and underlined hyperlinked font, access to information about which Fees may apply. Those decisions to add additional notice of specific terms do not take away from ClassPass’s efforts to make the Terms of Use conspicuous by setting them apart in bolded, underlined font, in a separate paragraph with font color that contrasts the white background.

Element 2: Transaction Context

The Ninth Circuit punted on this factor in Chabolla (wrongly, IMO, because it’s clearly intended to create a long-term subscription), so this court does too. This court adds: “unlike in Chabolla, Blackburn took the additional step and created a ClassPass account by logging in with her Facebook account.”

Element 3: Manifestation of Assent

“Blackburn clicked a button after being presented with a hyperlink to the Terms of Use.”

The court distinguishes Chabolla:

in Chabolla, there was no indication that a user was ever signing up. Here, at the top of the 2019 Sign Up Screen there is a heading that unambiguously reads in bold lettering: Sign up

Blackburn pointed out that in the 2019 Signup Screen, the disclosures inconsistently and ambiguously refer to both “the” TOS and “our” TOS. The court responds that the argument “makes no sense. If a user is signing up through a preexisting Facebook account, that user must have necessarily already agreed to be bound to any Terms of Use or other terms of Facebook. It is not ambiguous to a reasonable Internet user signing up for an account or membership with ClassPass, even by way of Facebook, that any newly presented Terms of Use are those of ClassPass, not Facebook.”

With respect to the 2023 Reactivation Checkout Screen, Blackburn pointed out that the TOS offer language referred to “the” button but there were two buttons below it. The court responds:

“the” in the context of the 2023 Reactivation Screen must mean “either,” because a user attempting to access the 45 free Credits can only click one button to do so, or as the 2023 Reactivation Screen denotes, “the button.”

Normally, “the” connotes a singular reference. Here, the court reads it to connote plural references.  ¯\_(ツ)_/¯

In a footnote, the court says: “I do agree with Blackburn that the 2019 Checkout Screen’s language (“By clicking the Redeem now button, I agree to the Offer Terms and Terms of Use . . .”) is curious because it leaves out whether a user who chooses to pay using G Pay is likewise bound. But a reasonable Internet user would likely understand that payment using either method would bind the user to the visibly hyperlinked Terms of Use and it is clear that Blackburn manifested assent via the 2019 Sign Up Screen and 2023 Reactivation Screen in any event.”

Implications

I view the Chabolla and Godun opinions as companion cases. They came out just a couple of months apart, and they both took highly skeptical approaches to online TOS formation. Remarkably, this court doesn’t cite Godun even once. That is a conspicuous omission.

To me, this ruling is another reminder of how TOS formation analysis has descended into Calvinball. As Judge Bybee warned in dissent in the 9th Circuit Chabolla case: “minor differences between websites will yield opposite results….That sows great uncertainty in this area.” Here, comparing this lawsuit to Chabolla, we have the exact same defendant and similar formation processes from around the same historical time period, yet Classpass gets TOS formation when the Ninth Circuit denied it last year. The outcome appears to flip based on tiny differences.

I will also note how many of the court’s assessments turn fundamentally on consumer expectations, except the court doesn’t cite a shred of empirical evidence about what consumers think. The missing empiricism plays a major role in the Calvinball phenomenon.

If the court had been inclined to do so, it could have picked apart each screen and found deficiencies in each. After all, that’s what the Ninth Circuit did in its Chabolla case. Some examples:

• In the 2019 Signup Screen, the TOS offer language refers to “sign up with Facebook” and the button says “continue with Facebook.” Plus, there is a second “sign up” button lower on the screen that the court ignores even though it matches the TOS offer language. All of this may sound ticky-tack, but…in the Chabolla case, the court rejected a screen where the TOS offer said “I agree to” and the button said “redeem now,” and in the Godun case, one of the screens failed because the TOS offer said “I agree” and the button said “connect now.”
• In the 2019 Checkout Screen, the TOS offer language is stacked below a large paragraph of offer terms, and it appears to be a slightly smaller or lighter font than those. The court could say that reasonable consumers would spot it anyway, but that’s an empirical question without empirical support. Many other courts would have treated the text block as so monolithic that no sentence stood out.
• The 2023 Reactivation Confirmation Screen had the text block problem plus (as the court discussed) the imprecision of a reference to “the” button when there were two button options.

To be fair, I don’t necessarily support courts doing this degree of ticky-tack pixel policing. However, that level of exactitude drove the Chabolla and Godun decisions.

The screenshots at issue all predate the Chabolla and Godun decisions. Today, there’s no excuse for weak sign-in-wraps like this. I expect you to do better. The courts will expect that too.

As Judge Bybee said in dissent in Chabolla, “Our decision today will drive websites to the only safe harbors available to them, the clickwrap or scrollwrap agreements.” Want to opt-out of the TOS formation Calvinball? Take the certainty of clickwraps over the chaos of sign-in-wraps.

Case Citation: Blackburn v. Classpass USA Inc., 2026 WL 962734 (N.D. Cal. April 9, 2026)

The post Remember When the Ninth Circuit Rejected Classpass’ TOS Formation? About That…–Blackburn v. Classpass appeared first on Technology & Marketing Law Blog.

The Supreme Court’s decision in Cox v. Sony sent a shockwave through the copyright world. In an opinion that felt like a cold shower for copyright owners, Justice Thomas essentially dismantled the familiar “specific knowledge plus material contribution” framework for contributory liability that had governed the circuits for decades.

If you take the opinion at face value, holding a service provider liable for user infringement now seems to require either inducement (per Grokster) or showing that the service was “tailored to infringement” (presumably, following Sony). Meeting either of those bars is exceptionally difficult, and on paper, it could massively shrink the scope of secondary liability.

The result is that copyright owners seem to have lost a major tool to address large-scale infringement facilitated by intermediaries. More broadly, this result seems to undermine the delicate balance between copyright owners, their consumers, and intermediaries.

Unsurprisingly, the reaction has been swift and sharp. Paul Goldstein, right on this blog, called the opinion “ill-considered.” Shira Perlmutter, the Director of the Copyright Office, nicely summarized the overall sentiment, suggesting that the court “put little thought” into the implications of its opinion and noting that “we’re all still reeling from this a bit.”

I am not here to defend the Cox majority. Not even remotely. The decision seemingly overrules, perhaps unknowingly, dozens of circuit precedents and veers away from settled common-law notions of liability. It feels both unjust and inefficient to let a party that knowingly assisted in infringement walk away scot-free.

But I am here to offer a prediction: the sky will not fall. While Cox looks like a tectonic shift, I suspect its actual impact will be significantly more modest. If history is any guide, the copyright system is remarkably adept at absorbing, mitigating, and—dare I say—circumventing the Supreme Court’s attempts at central planning.

The Myth of Supreme Court Supremacy

In a forthcoming article, Circumventing the Supreme Court: Copyright Law and the Limits of Judicial Centralization, I argue that we consistently overestimate the Court’s ability to actually change copyright law.

We’ve seen this movie before. Every few years, the Court hands down a decision that seems poised to reshape the field: Star Athletica supposedly wrecked separability and opened the floodgates for industrial design protection; Aereo looked like the death of the volitional conduct doctrine; Kirtsaeng presumably gutted the ability of copyright owners to exercise post-sale control; and Eldred and Golan were read as giving Congress a blank check on copyright expansion, allowing it to extend its terms, maybe indefinitely. Each of these decisions generated a wave of commentary predicting dramatic consequences. I’ve participated in that tradition too.

But none of those things really happened. Instead, the copyright system showed incredible resiliency.

The reason is partly structural: the Supreme Court is an absentee landlord. Outside of fair use, it handles any given copyright question like a cicada emergence: showing up, then disappearing for another couple of decades. Secondary liability is a perfect example: Sony (1984), Grokster (2005), Cox (2026). That’s a 21-year cycle.

In the long stretches between those decisions, lower courts and other repeat players run the show. When the landlord is away, the tenants can rearrange the furniture.

So, how will the system respond to the hole that Cox just punched in copyright law’s liability scheme? Yogi Berra taught us that it’s tough to make predictions, especially about the future. Still, I can offer a few incomplete and non-mutually exclusive possibilities.

1. Embracing the Minority: The “Aereo” Maneuver

The boldest way to circumvent a majority opinion is probably to treat the minority view as the true law of the land. It sounds like heresy, and in many respects it is. But we have a recent blueprint: the volitional-conduct doctrine after Aereo.

In Aereo, the Justices split over the volition requirement. Justice Scalia, in dissent, embraced it and the body of circuit law that had developed around it over the years. Justice Breyer’s majority, by contrast, didn’t even mention it. Instead, it reasoned that because the system looked like a cable company, it should be treated like one, brushing aside the (very real) technological nuances.

Scalia warned that this would leave automated systems in legal limbo for decades. In reality, it took months. Lower courts essentially shrugged and went back to business as usual, applying volitional conduct as if Aereo had never happened.

When plaintiffs argued the doctrine was dead, the Second, Fifth, and Ninth Circuits doubled down with reasoning that was delightfully brazen: they heavily leaned on Scalia’s dissent as evidence that the doctrine was well-established, and even now endorsed by the Supreme Court. And as for the majority, it did not “directly dispute or comment on Justice Scalia’s explanation of the doctrine” or “explicitly reject Justice Scalia’s formulation of the volitional-conduct requirement.”

Cox might meet a similar fate. Justice Sotomayor’s concurrence seems aligned with pre-2026 circuit precedent and thus provides a ready-made framework to preserve the old regime.

Will that be a faithful reading of the majority opinion? Not really. But fidelity hasn’t always been the driving force in applying Supreme Court copyright opinions, like Aereo. So we shouldn’t be too surprised if judges lean on Sotomayor’s opinion, noting, with a straight face, that Thomas did not “directly dispute” or “explicitly reject” her analysis.

2. Narrowing to the Facts: The Grokster / Kirtsaeng Treatment

If you can’t ignore a decision, you can shrink it until it only fits specific, idiosyncratic facts.

We saw this with Grokster. Lower courts confined inducement to situations involving exceptionally egregious conduct. The inducement doctrine became real, but also rare. We saw it with Kirtsaeng, too, where the Court embraced a broad reading of the first sale doctrine, but lower courts were reluctant to apply its logic in other contexts, including in the digital space. The first-sale doctrine remained broad, but inapplicable to most of today’s content.

Cox could follow the same path. Courts can emphasize its facts: a passive service provider with no specific knowledge that took some steps to discourage infringement. Multiple statements in the Cox majority, such as “this Court has repeatedly made clear that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe,” can assist lower courts in distinguishing it from defendants whose knowledge is broader.

There is a wrinkle here. On their face, Grokster and Kirtsaeng left significant leeway to lower courts. The Cox majority, sadly, did not leave as much space. Textually, it is needlessly broad (a rare move for the Roberts court, both outside and within copyright law). That makes narrowing it harder, at least on paper. But harder is not the same as impossible. We didn’t have to wait long to see that dynamic play out. As Eric noted, just six days after the Supreme Court opinion, a district court in California distinguished it because Cox, presumably unlike the defendant there (Twitter), discouraged copyright infringement.

3. Expanding Neighboring Doctrines: The Star Athletica Pivot

The most likely response, in my view, is not to resist Cox directly, but to work around it.

When the Supreme Court closes a door, lower courts often just open a window in the next room. This is the hydraulic nature of copyright law: if you squeeze one doctrine, the pressure simply moves elsewhere.

Consider, for example, Justice Thomas’s previous copyright masterpiece:  Star Athletica. It might seem to have thrown the door wide open to the copyrightability of industrial designs, but many lower courts achieved comparable filtering, most often through broader use of other doctrines, such as the idea-expression distinction, the merger doctrine, or scènes à faire. Others granted plaintiffs a noticeably thin copyright. Overall, those moves mitigate (although not eliminate) the potential impact of Star Athletica.

There are many doctrines that can attempt to fill the gap that Cox left in effective copyright enforcement. I’ll mention a few immediate suspects:

A. Direct liability

If contributory liability becomes harder to prove, plaintiffs might lean more heavily on direct liability. That means revisiting doctrines that have traditionally limited it, especially volitional conduct.

The volitional conduct doctrine has always been somewhat fragile: thin textual grounding, no clear Supreme Court endorsement, and uneven (and somewhat unclear) lower court application. It would not take much for courts to stretch it. Eric alluded to the same issue in discussing a recent Twitter decision, where a district court held (quite strangely, in my opinion) that the company acted with volition when it did not respond to DMCA takedown notices.

B. Vicarious Liability

Vicarious liability could also do more work. It requires the right and ability to control the infringing activity and a direct financial benefit from it. Historically, courts have applied this doctrine cautiously in the online context. But if contributory liability becomes harder to establish, courts may be more willing to find supervisory power in a platform’s architecture and a financial benefit in its business model.

C. Inducement

Finally, courts can stay within the contributory framework but expand what inducement means. More than the Grokster Court itself, it was lower courts that chose to define the doctrine narrowly. In the immediate aftermath of Grokster, many commentators worried that inducement would be applied broadly and threaten the development of the internet. In practice, however, lower courts have been reluctant to find inducement without evidence that the defendant actively marketed its services to infringers. Other factors the Court pointed to in Grokster, such as a failure to filter or a business model tied to infringement, have not been enough.

But after Cox, if specific knowledge is indeed not a route to find contributory liability, courts may be more willing to treat a wider range of conduct as evidence of intent to induce infringement.

4. The Long Shot: A Legislative Reform

There is also, at least in theory, a legislative path.

Congress has been largely inactive in copyright for decades. But a doctrinal shock can create political momentum. If Cox is perceived as significantly weakening copyright enforcement, rights holders may push for statutory reform.

Whether Congress will act is uncertain. Structural constraints that have limited copyright legislation in recent decades remain in place. But Cox increases the pressure. Shira Perlmutter has already hinted in that direction.

Conclusion: Copyright resiliency

Nobody, of course, knows what will happen next. But I would be very surprised if courts allow intermediaries to knowingly facilitate infringement without meaningful legal consequences.

If Cox created that gap, the repeat players within the copyright ecosystem, especially lower courts that routinely deal with copyright law, will find ways to bridge it. That is what the copyright system has done repeatedly.

Cox may be the rare decision that genuinely reshapes the scope of copyright protection, but if so, it would be the first time in decades. Instead, I’d comfortably bet that the lower courts will be rearranging the furniture.

The post The Cox Shock: A Tectonic Shift or Just a Tremor? (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

* * *

The court summarizes the state’s claims:

The Commonwealth alleges that Meta Platforms, Inc., and Instagram, LLC (collectively, Meta), engaged in unfair business practices by designing the Instagram platform to induce compulsive use by children, engaged in deceptive business practices by deliberately misleading the public about the safety of the platform, and created a public nuisance by engaging in these unfair and deceptive practices.

Meta moved to dismiss on Section 230 and other grounds. The lower court denied the motion. Meta sought an interlocutory appeal, which the MA Supreme Court permitted, but only to review the Section 230 issue.

In this ruling, the MA Supreme Court unanimously agreed with the lower court that Section 230 didn’t immunize Meta when “the claims allege harm stemming from Meta’s own conduct either by designing a social media platform that capitalizes on the developmental vulnerabilities of children or by affirmatively misleading consumers about the safety of the Instagram platform.”

Section 230

Treated as Publisher

The court starts with its own “plain language” review of what it means to be treated as a publisher. When courts decide to review a 1996 statute from scratch in 2026, after over a thousand Section 230 cases have been decided, that’s usually an indicator that they are engaging in results-oriented decision-making, they don’t like the precedent, and they need another way to reach a different result.

Worse, the court extensively analyzes the word “publisher” but doesn’t say a word about the companion “speaker” term that appears two words later in the statute. This is another indicator of results-oriented decision-making. No matter what the court says “publisher” means, if the court disregards one of the other 26 words that has direct relevance to its meaning, the court is failing its #1 job of reading the damn statute. This omission is extremely embarrassing for the court, and it thoroughly undermines the credibility of the court’s recitation of precedent.

(I would say that the botched statutory reading would be the kind of thing that should be fixed on appeal, but the US Supreme Court’s specialty is selectively reading statutes and precedent to support results-oriented decision-making, so I guess other courts are emboldened to do that too…?)

The court tries to sum up its “plain language” review. Citing the awful Henderson 4th Circuit (which the Fourth Circuit itself has implicitly repudiated), the court says:

These courts have rejected the argument that § 230(c)(1) provides immunity from liability “anytime there is a ‘but-for’ causal relationship between the act of publication and liability,” as it “bears little relation to publisher liability at common law.” Engaging in traditional publishing activity “alone is not enough.”…

(Note: along the way, the court includes quotes of the mockable “get-out-of-jail-free” and “lawless no-mans-land” characterizations of 230, despite my prior debunking of both phrases. Another way the court undermined its own credibility).

Because “the plain meaning of the statute lends itself to competing constructions,” the court then turns to the legislative history for more insight into the meaning of the word “publisher.” This leads to the one-millionth retelling of the Cubby/Stratton Oakmont storyline, with no new payoffs.

Instead, citing Henderson again, the court restates the statutory language in garbled fashion: “Congress intended to immunize interactive computer service providers against claims that would hold them liable as intermediaries for injuries caused by information provided by third-party users of their platforms.”

Relying on that garbled restatement, the court says:

we decline Meta’s invitation to read § 230(c)(1) immunity so broadly as to encompass all claims that implicate publishing activities regardless of whether the claims seek to hold the service provider liable for the content of the information published….

a claim treats a provider as a publisher of information where it meets both the dissemination and content elements.

I’d need to see how Meta argued this, but it feels like the court is rejecting a strawman. Meta publishes third-party content–everyone agrees on that. The service features challenged by the state AG relate to the manner in which Meta presents that third-party content to Meta’s audience. To me, a publisher’s choices of what third-party content to publish and how to publish that third-party content are integrated decisions. In other words, the content selection and presentation decisions are part of the same publication decision. As an analogy, consider a dead-trees newspaper’s decision to publish a story: it is equally part of the newspaper’s editorial prerogative and publication decisions to decide to publish the story at all and to decide if the story should appear on the A1 front page or some interior page; what size typeface to use for the story headline; whether the story runs all on the same page or continues on a later page; etc. As applied to Meta, the decision to vary the delivery timing of new third-party content items (as one example) is just as much of Meta’s publication decision-making process about publishing the third-party content as whether the item will be published at all.

In any case, by saying that 230 only applies to claims that derive from the substance of the third-party content item, the court can disregard a LOT of precedent that applied Section 230 to design defects. The court says the only oppositional precedent is some language in the Social Media Addiction federal decision, which the court denigrates by saying the judge in that case “did not appear to consider the common-law origins of publisher liability or the statute’s legislative history. We are not persuaded by its reasoning.” [Yes, it’s jarring to see Meta cite the CA social media addiction case as support for its position given that how poorly the California cases have been going for Meta.]

Liability Based on Third-Party Content

Claim for unfair business practices. Having said that Section 230 distinguishes the decisions of what content to publish (230-protected) and how to present it (not protected by 230), the court is positioned to uphold all of the claims.

The court says: “The challenged design features (e.g., infinite scroll, autoplay, IVR, and ephemeral content) concern how, whether, and for how long information is published, but the published information itself is not the source of the harm alleged.”

Meta responded that “in the absence of third-party content, the design features could not facilitate addiction in young users.” (My framing: if social media delivers third-party content, what exactly are users “addicted” to?). The court replies:

But the fact that the features require some content to function is not controlling; instead…to satisfy the content element, we look to whether the claim seeks to hold Meta liable for harm stemming from third-party information that it published. Here, the unfair business practices claim does not; the Commonwealth alleges that the features themselves prolong users’ time on the platform, not that any information contained in third-party posts does so. In this sense, the claim is indifferent as to the content published…

the fact that a claim concerns publishing activities, including the use of algorithms in connection with publishing activities, is not enough to bring the claim within the immunity provided by § 230(c)(1)

In a footnote, the court adds: “with respect to the notifications feature, Meta appears to be the information content provider.” But…what content is included in the notifications, and where does it come from?

In a slight piece of good news, the court rejects the state’s Lemmon v. Snap analogy because Lemmon’s “claims did not concern the provider’s publishing activity at all. [Eric’s note: the Lemmon plaintiffs expressly disclaimed all liability based on the content produced by the filter.] By contrast, here, the challenged features are publishing tools that control how Meta publishes content to users of its platform.” I wish more courts would similarly reject the plaintiffs’ many miscitations to Lemmon.

Claim for deceptive business practices. The claim “is based on Meta’s own speech — its allegedly false statements that Instagram is safe and not addictive, and that Meta prioritizes young users’ well-being, despite internal reports and communications suggesting awareness of the harmful effects of Instagram.” There are obvious puffery/opinion defenses that could apply here (see, e.g., the YOLO remand in Bride v. Snap, Inc., 2026 WL 855148 (C.D. Cal. March 16, 2026) that I will eventually blog) but are not at issue in the 230 discussion.

Also, some courts have applied Section 230 to false advertising claims when those claims are fundamentally based on how the service handles its content moderation decisions, such as claims about “safety.” The court doesn’t acknowledge that precedent and instead treats Section 230 as categorically inapplicable to false advertising claims.

Claim for defective age-gating. “the claim focuses on Meta’s own affirmative misstatements about the inaccessibility of its platform to underage users.” Another possible puffery issue.

Nuisance. I’ve previously complained before about courts’ complete undertheorizing of how and why public nuisance claims can apply to social media, and this court doesn’t do any better. In a footnote, here is the court’s entire discussion about Section 230’s application to the public nuisance claim: “Because we conclude that § 230(c)(1) does not bar counts I to III, we also conclude that it does not bar the Commonwealth’s public nuisance claim, which is predicated on the same allegedly unfair and deceptive practices in counts I to III.”

What Happens Next?

Meta could appeal this ruling to the US Supreme Court. That would be a risky move because the US Supreme Court could really go sideways on a decision like this. Also, I’m skeptical the US Supreme Court would grant cert.

Meta could choose to prioritize winning this case on remand on non-230 grounds. For example, the MA Supreme Court validated that Meta’s service features at issue are part of its content publication process. Perhaps that will revitalize Meta’s First Amendment defense?

Whether Meta chooses to appeal or double-down on remand, it’s likely that the CA federal and state court social media addiction cases will have important new developments before any material developments happen in this case. Those developments could swamp the effects of this lawsuit. For example, if Meta loses more bellwether trials in California, the outcome of this case may be comparatively inconsequential.

Quo Vadis Section 230?

This is not a good opinion for Section 230 on several dimensions.

First, as a state supreme court decision, it’s the final word for the Massachusetts state court system (unless the US Supreme Court intervenes). It provides a major beachhead for other courts to follow, both within Massachusetts and beyond.

Second, this court didn’t rely on the Lemmon “design defect” workaround. Instead, it said that the claim doesn’t relate to third-party content unless it’s based on the substance of the third-party content. This provides plaintiffs with another avenue to work around Section 230 in addition to the Lemmon/design defect workaround that other courts are accepting (even if they shouldn’t).

Third, as I explained, I don’t see any distinction between third-party content and the editorial choices about the manner of presenting that third-party content. By embracing that false dichotomy, the court invites plaintiffs to reframe their complaints to focus on content presentation instead of substance. Here’s how a plaintiff’s argument could look: “I’m not suing about the third-party content, I’m suing about the design choices that elevated that third-party content over others.” These are literally the same thing in my mind. If this argument works, Section 230 is dead because plaintiffs will always embrace that workaround.

Even if this opinion doesn’t outright eliminate Section 230 in Massachusetts, it’s a sign of how 230 workarounds keep proliferating, contributing to the swiss cheese-ification of Section 230. When the bubbles in the swiss cheese become too large, the cheese wedge lacks structural integrity and falls apart. That is where 230 is heading, if it’s not already there.

Case Citation: Commonwealth v. Meta Platforms, Inc., 2026 WL 969430 (Mass. Supreme Jud. Ct. April 10, 2026)

The post With Opinions Like This, Congress Doesn’t Need to Repeal Section 230–Massachusetts v. Meta appeared first on Technology & Marketing Law Blog.

The Twitter ruling also gives an early sense of how lower courts might navigate the Cox v. Sony Supreme Court ruling. Though it’s only a single datapoint and is surely skewed because the judge had written the opinion before the Supreme Court’s decision, the court’s “solution” highlights several ways courts can work around the Cox ruling that may undermine its seemingly defense-favorable result.

Michael Grecco Productions, Inc. v. TikTok, Inc., 2025 WL 4672998 (C.D. Cal. March 12, 2025). The CourtListener page.

[Note 1: This year-old opinion just showed up in my alerts.]

[Note 2: Plaintiff’s lawyer is CopyCat Legal and Lauren M. Hausman, who I mentioned in this other copyright lawsuit against TikTok. I don’t love the firm’s filings, but I do like the firm’s cat-themed imagery.]

This case relates to 22 photos that users allegedly uploaded to TikTok. The plaintiff claims that it sent DMCA takedown notices, but allegedly the works didn’t come down.

Direct Infringement

Defendant contends Plaintiff has not and cannot allege any volitional conduct by TTI to support its direct copyright infringement claim. Plaintiff admits “a direct theory of liability has not been properly set forth in the FAC”

+5 points for the plaintiff firm’s candor, -10 points for bad drafting.

Vicarious Infringement

Plaintiff alleges TTI “has the right and ability to control the infringing acts of its users yet declined or failed to stop its users from engaging in its infringing activity.” As support, Plaintiff alleges it sent multiple DMCA takedown notices to TTI. Missing from these allegations are any details related to the contents of these notices, including when they were sent and how they identified the media that infringed the Work. Plaintiff’s assertion it sent multiple DMCA takedown notices to Defendant, alone, is insufficient to plead Defendant had sufficient knowledge to exercise the requisite control over the allegedly infringing users.

A lot to dislike here. First, the plaintiff uses the less-preferred variant of the vicarious infringement test from the Grokster opinion, which has cluttered up the considerations. Second, vicarious and contributory infringement doctrines have effectively merged if both are triggered by the same takedown notices. This is more of a 9th Circuit problem than a problem with this opinion, but it’s still a problem. At minimum, scienter has unambiguously crept into the traditionally strict-liability vicarious infringement test.

Contributory Infringement

Same pleading problems with the factual imprecisions about the DMCA takedown notices.

Developments Since This Ruling

The plaintiff filed a second amended complaint, and the parties had an unsuccessful mediation. Both parties have summary judgment motions pending. The judge said in September that he would rule on those motions without a hearing, but no word since.

An Observation

In a footnote, the court adds “The FAC contains typographical errors, whereby Plaintiff repeats certain paragraph numbers.” Oops. That sloppiness is in addition to the pleading defects of not properly alleging direct infringement and not providing adequate details about the DMCA takedown notices. In light of the Twitter ruling, this data might help form a hypothesis about the relative performances of the different law firms.

Michael Grecco Productions, Inc. v. Twitter, Inc., 2026 WL 917606 (C.D. Cal. March 31, 2026)

This case involves the same plaintiff and same judicial district (C.D. Cal.) as the TikTok lawsuit, but the differences include: different plaintiff’s counsel (One LLP and Blakey Law Group), different defense counsel (Willenken and Quinn Emanuel), different procedural stage (judgment on the pleadings instead of motion to dismiss), different judge, different time (1 year later), and different outcome (plaintiff’s claims survive the challenge).

According to the complaint, “Grecco sent DMCA takedown emails to Twitter for the copyright infringement of the alleged 111 infringed upon copyrighted materials….Twitter has not taken action as to the DMCA takedown requests pertaining to the 111 copyrighted materials.”

Direct Infringement

Twitter contends that it did not commit volitional acts as the infringing conduct was posted by third party users. The 2AC argues that Twitter actively and willfully engaged in the infringement by refusing to honor valid DMCA takedown requests pertaining to the infringing content submitted by Grecco.

Per the plaintiff, not taking any action qualifies as “actively and willfully engaging” in infringement? Really? Yet, remarkably, the plaintiff makes the sale on this argument:

the 2AC provides that Twitter was: (1) on notice of the alleged infringing material; and (2) Twitter failed to address the DMCA takedown requests and remove the material from its platform. The alleged failure to remove the alleged infringing material is within Twitter’s exercise of control, not third-party users. By pleading that Twitter allowed the alleged infringing material to remain on its platform and failed to respond to the DMCA takedown requests, Grecco has properly pleaded that Twitter engaged in the active display of the infringing material.

What does “active display” mean? The grammar reminds me of the Seinfeld finale.

Note how the court’s move gets around Cox v. Sony. This court says that Twitter’s failure to respond to a takedown notice constitutes DIRECT infringement because the takedown notice turns non-volitional conduct into volitional conduct. No contributory infringement required, which means Cox v. Sony doesn’t necessarily block this doctrinal move at all.

The court’s direct infringement doctrinal move shouldn’t work. I think this ruling diverges from the Ninth Circuit standards on online volition (and it clearly conflicts with the Second Circuit’s Cablevision’s ruling), but who knows because the Ninth Circuit has done a poor job articulating the standard. The judge distinguishes the VHT v. Zillow ruling because the defendant in that case honored the takedown notice, while here Twitter allegedly did not, and the court thinks that distinction matters to volitional conduct. I wonder if the Ninth Circuit will find this judge’s doctrinal contortions persuasive.

Note that Twitter could still theoretically defeat the direct infringement claim using the DMCA 512(c) safe harbor. However, if Twitter didn’t honor the takedown notices, then it should also be disqualified from 512(c).

Contributory Copyright Infringement

Although this court knew of the Cox ruling (more on that in a moment), the court applied the now-deprecated Gershwin scienter + material contribution test.

Unlike the TikTok case above, Grecco prepared the takedown notice details properly: “Grecco details the copyright material, the copyright registration information, and the DMCA takedown requests submission dates.” With adequate detail about the takedown notices before the court, “the Court finds that Grecco sufficiently alleged a simple measure, and thus material contribution under a claim for contributory copyright infringement. As the Court finds that Grecco has sufficiently pled actual knowledge and material contribution.”

For completeness, the court shuts down the inducement path: “the failure to remove does not speak to an objective to promote.”

But what about Cox v. Sony? In a footnote, the court says:

Grecco submitted numerous DMCA takedown requests, which included the copyright and infringing material information—placing Twitter on notice of the infringing activity. Twitter, however, took no action to remove the infringing materials. Grecco also alleges that Twitter’s acts of infringement were “willful.” As such, Cox is distinguishable from this matter.

The court surely had written most or all of this opinion before Cox came out, and the court sought the path of least resistance to issue the already-drafted opinion without rewriting it. But c’mon. In Cox, the plaintiffs submitted many DMCA notices, and Cox took no action. Perhaps the court is trying to draw a line between hosting and Internet access without actually saying so? With respect to the “willful” allegations, if failure to remove in response to a takedown notice is a willful infringement, then Cox was willful too. But the court doesn’t explain how Twitter was “willful” other than reciting Grecco’s bare assertion. Not helpful.

Vicarious Infringement

Grecco sufficiently pleads that Twitter had the right and ability to supervise the alleged infringing content through the DMCA takedown requests. Upon reviewing Grecco’s requests, Twitter could have removed the content from its platform

The 2AC asserts that Twitter has generated revenue through the increased traffic from the infringing content. And this is all that is needed at this stage. Grecco need not explain at this stage how the infringing content operates as a draw to consumers, but merely that this specific infringing content does.

As with the TikTok ruling, the vicarious infringement test has largely collapsed into the contributory (and now direct) infringement tests. What a mess. The Ninth Circuit, and ultimately the Supreme Court, needs to clean up these tests.

Statute of Limitations

The court applies a 3-year limitation from date of posting (rather than from date of last download, which other courts have applied), which screens out 38 of the 111 works at issue.

Implications

I could see the Ninth Circuit reversing each and every part of the Twitter decision, i.e., saying there is no direct, contributory, or vicarious infringement, and no SOL problem. At minimum, this ruling shows how lower courts are struggling to consistently apply the infringement tests to online hosts.

The Twitter ruling also provides an early indicator that Cox may not be as much of a defense win as it appeared. Lower courts can, and likely will, make doctrinal countermoves to bail plaintiffs out.

The Twitter ruling might also illustrate how the DMCA safe harbors have converged with the underlying doctrinal tests. This opinion suggests that failing to follow the DMCA takedown procedures virtually ensures liability on the prima facie elements too, thus collapsing the prima facie elements and the DMCA safe harbor elements.

Judge Maame Ewusi-Mensah Frimpong wrote the Twitter opinion. I didn’t see anything in her background that explains why she bent over backwards for the plaintiff here.

More Blog Posts About Michael Grecco

• What’s the Difference Between Copyright Takedown Notices and Spam?–Michael Grecco v. Fandom
• Blogger’s Photo Republication Isn’t Fair Use–Golden v. Grecco
• Reminder: Cutting-and-Pasting Photos from the Internet Is Hazardous to Your Legal Health–Grecco v. Valuewalk

The post Will Lower Courts Find Ways Around Cox v. Sony? You Betcha appeared first on Technology & Marketing Law Blog.

* * *

In Cox Communications, Inc. v. Sony Music Entertainment, an ill-considered 2026 decision that will serve the interests neither of copyright owners nor of copyright users—nor, for that matter, society’s interest in a balanced copyright system—the United States Supreme Court took an axe to contributory liability, ruling that an internet service provider serving approximately six million subscribers was not contributorily liable for its subscribers’ copyright infringements merely because it had provided “a service to the general public with knowledge that it will be used by some to infringe copyrights.” According to the Court’s opinion, written by Justice Clarence Thomas, “[t]he provider of a service is contributorily liable for a user’s infringement if it intended its service to be used for infringement.” To establish such intent, “a copyright owner must show one of two things. First, it can show that a party affirmatively ‘induc[ed]’ the infringement. Or, second, it can show that the party sold a service tailored to infringement.”

Image produced by ChatGPT March 2026

“Inducement” has an established place in copyright jurisprudence. But the concept, “tailored to infringement,” appears nowhere in the Copyright Act or in copyright case law. The late Justice Ruth Ginsburg’s concurring opinion in Metro-Goldwyn-Mayer Studios Inc. v Grokster Ltd., to which Justice Thomas ascribed the term, in fact nowhere included those words. Justice Ginsburg did employ the terms “substantial” or “commerciallv significant” noninfringing uses, referring to the concept that had become a central determinant for withholding contributory liability for providing goods or services since the Court first adopted it in Sony Corp. of America v. Universal City Studios, Inc. Justice Thomas’s treatment of the two terms as equivalent—“[a] service is tailored to infringement if it is ‘not capable of “substantial or commercially significant”’ non-infringing uses—overlooks not only that the first term is materially narrower than the second, but also that Sony borrowed it from the patent statute with the distinct object of ensuring that consumers not be required to pay monopoly tribute for otherwise unprotected goods or equipment. If selling salt tablets that can be used in a patented salt dispenser should not be actionable because the tablets have a substantial noninfringing use, so sales of video recording devices employed to copy copyrighted works should not be actionable if the devices possessed one or more substantial noninfringing uses, such as time-shifting recorded programs for later viewing.

By assimilating “substantial noninfringing use,” an objective, competition policy-based measure of liability, into a necessarily subjective intent-based measure, Cox seems likely to destabilize entrepreneurial planning for the introduction of new devices and services for exploiting copyrighted works. To be sure, service providers may see in the opinion a license to deliver services to subscribers–even though they know that many and even most of the uses may infringe–so long as they don’t promote or specifically design their services for infringement. In fact, if the Court believed that its narrowing of contributory liability to inducement by words or by device or service design, would enhance marketplace certainty, it might not have reflected carefully enough on the flimsy, indeed passive, evidence that it accepted in Grokster as evidence of inducement: that the defendants aimed “to satisfy a known source of demand for copyright infringement”; that defendants failed “to develop filtering tools” to “diminish the infringing activity using their software”; and “the commercial sense of their enterprise turns on high volume use.” Cox offers small solace to service providers if an act of omission such as failure to install filtering tools will subject them to liability.

The Court’s attempt in Cox to circumscribe contributory liability on the internet is understandable. The prospect of an aggregation of tens of thousands statutory damage awards—the award against Cox was $1 billion—can be daunting, indeed devastating, for even the most well-heeled service provider. The correct solution, however, would be for Congress to revise the Act’s statutory damages provision, and at least one bill has been introduced to that end. The prospect of secondary liability for generative AI platforms for the conduct of their users in prompting texts, sounds and images similar to copyrighted works may also have figured in the Court’s attempt at caution. But the question of secondary liability—indeed, of direct infringement liability—for these AI activities has not yet been directly addressed by the courts, or by the Congress, and for the Supreme Court to legislate on the question without a trial record or statutory text before it would be premature.

The terrain of secondary copyright liability generally has turned treacherous since the introduction in 1998 of the internet safe harbors, for the expectations of service providers and their subscribers have over the ensuing years been shaped less by secondary liability doctrines than by the mechanisms of the safe harbors. Lawsuits defining the boundaries of liability on the internet have been displaced in the vast number of potential conflicts by compliance with the safe harbors, including by automated means such as YouTube’s immensely successful Content ID system. If there has been litigation over service provider liability, it has been mainly to define the terms of the safe harbors and not to measure the reach of secondary liability doctrines. As proposed elsewhere in this treatise, the solution to this legal vacuum is for courts to populate it with the norms that business operations under the safe harbors have come to define as reasonable behavior among copyright owners and service providers alike. Sadly, the Court in Cox ignored this possibility. Indeed, as Justice Sonia Sotomayor wisely observed of the safe harbors in her concurrence in Cox, “[i]mportantly, Congress did not provide that ISPs could never be secondarily liable for copyright infringement. Instead, it struck a balance by creating incentives for ISPs to take reasonable steps to prevent copyright infringement on their networks, while also assuring ISPs that they do not need to take on the impossible task of responding to every instance of infringement on their networks….The majority’s new rule completely upends that balance and consigns the safe harbor provision to obsolescence.”

The post Prof. Goldstein on Cox v. Sony (Excerpt from His Treatise) appeared first on Technology & Marketing Law Blog.

Take-Two sued PlayerAuctions for IP infringement. Some background on the lawsuit. PlayerAuctions brought a 512(f) counterclaim. The court rejects Take-Two’s motion to dismiss the 512(f) counterclaim:

PlayerAuctions alleges that Take-Two lacked a “subjective good faith belief” that the identified listings infringed Take-Two’s copyrights because Take-Two failed to consider whether the listings qualified as fair use prior to sending the Takedown Notice.  The Takedown Notice does not reference fair use or indicate that Take-Two considered the doctrine. Further, PlayerAuctions alleges that Take-Two has previously considered material similar to that in the listings to be fair use. Thus, PlayerAuctions asserts, had Take-Two considered fair use, it would have recognized that many of the identified listings constituted fair use.

These allegations, taken as true at the pleading stage, are sufficient to establish that Take-Two did not consider fair use before sending the Takedown Notice. If Take-Two did not consider fair use, it could not possibly have formed a good faith belief that the listings were unauthorized by the law, because “fair use is ‘authorized by the law.’ ” Lenz, 815 F.3d at 1153. Thus, PlayerAuctions plausibly alleges that Take-Two lacked a subjective good faith belief that the listings were infringing before sending the Takedown Notice, which is adequate to state a claim under § 512(f).

It’s a nonsequitur for the court to treat the absence of a fair use reference in the takedown notice as prima facie evidence of subjective bad-faith. DMCA’s 512(c)(3) does not require a takedown notice sender to reference anything about fair use, and it would be completely consistent with the governing Rossi caselaw for a takedown notice sender to consider fair use privately and not mention fair use in its takedown notice. Perhaps the court will reach this point at summary judgment, after Take-Two has a chance to explain its decisions, including what it did to evaluate fair use in these circumstances.

For now, the obvious implication is that if you want to reduce the chances of a 512(f) plaintiff surviving a motion to dismiss based on Lenz, the takedown notice should include a statement that the sender considered fair use for the targeted items and concluded that it did not apply.

Evaluation of fair use never happens before sending robo-takedown notices, so this ruling seems to suggest that the robo-notices are 512(f)-bait for that reason. Given that courts have tolerated robo-notices for many years, this court’s approach is either an outlier or a warning sign that courts are becoming intolerant of robo-notices.

The kicker is that the court has already said that Take-Two’s claims against PlayerAuctions have survived a motion to dismiss, so Take-Two suggested that ruling indicates its claims are valid enough to demonstrate Take-Two’s subjective good faith.  The court responds “meh,” pointing to the pleading burdens for a motion to dismiss.

Case Citation: Take-Two Interactive Software, Inc. v. PlayerAuctions, Inc., 2026 WL 856666 (C.D. Cal. March 26, 2026). The initial complaint.

BONUS: Art Akiane v. Art & Soulworks LLC, 2026 WL 893344 (N.D. Ill. March 31, 2026). 512(f) shows up in a dispute over ownership: “the Defendants allege that Art Akiane’s takedown letters were relied on by its customers to remove, return, and request a refund on purchased inventory. The Defendants only point to Carpentree’s customers as those who returned Akiane-related inventory to Carpentree due to receiving a takedown notice. But the alleged removal of online Akiane-related material by Carpentree’s customers does not amount to evidence of injury incurred by either of the Defendants. So, the Defendants have not shown a genuine dispute on whether they were harmed by Art Akiane’s takedown notices. Without evidence of harm, the Defendants cannot satisfy the damages requirement of Section 512(f).”

Prior Posts on Section 512(f)

* Does 512(f) Apply Differently to Counternotices Compared to Takedown Notices?
* It Takes a Lot for 512(f) Claims to Survive a Motion to Dismiss–Cordova v. Huneault
* Copyright Takedown Notices May Be Affecting Your Washing Machine Options–Ningbo Yituo v. GoPlus
* 512(f) Claim Sent to Trial (Which Didn’t Happen)–Leszczynski v. Kitchen Cube
* 512(f) Doesn’t Support Preliminary Injunction–BViral v. TheSoul
* In 512(f), the “F” Stands for “Futility”–Shaffer v. Kavarnos
* Does Anyone Still Care About NFTs? (Yuga Labs, LLC v. Ripps) — Guest Blog Post
* Viral DRM Awarded Damages for Its 512(f) Claims, But At What Cost?
* Big YouTube Channel Gets TRO Against Being Targeted by DMCA Copyright Takedown Notices–Invisible Narratives v. Next Level Apps
* The Competition Between Temu and Shein Moves Into a Courtroom–Whaleco v. Shein
* Copyright Battles Over City Council Videos
* Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG
* Plaintiffs Make Some Progress in 512(f) Cases
* 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial
* 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox
* Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! –Alper Automotive v. Day to Day Imports
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment

The post Do DMCA Takedown Notices Need to Expressly Refer to the Lack of Fair Use?–Take-Two v. PlayerAuctions appeared first on Technology & Marketing Law Blog.

This ruling follows a jury verdict in a New Mexico trial against Meta involving similar arguments. The NM jury imposed $375M in damages.

Together, these rulings indicate that juries are willing to impose major liability on social media providers based on claims of social media addiction. That liability exposure jeopardizes the entire social media industry. There are thousands of other plaintiffs with pending claims; and with potentially millions of dollars at stake for each victim, many more will emerge. The total amount of damages at issue could be many tens of billions of dollars.

The Los Angeles jury verdict is the first of three bellwether trials in Los Angeles, with more bellwether trials to follow in summer in the federal case. As such, today’s verdict is just one datapoint about liability and damages. The other trials could reach divergent outcomes, so this jury verdict isn’t the final word on any matter.

The social media defendants will appeal the adverse jury verdicts. They have several good grounds for an appeal, including how products liability claims apply to intangible services, questions about who caused the victims’ harms, and the scope of speech-protective doctrines like the First Amendment and Section 230. If the appeals court disagrees with the lower court on one or more of these issues or others, the jury verdicts might be reduced or wiped away entirely.

In parallel with the court cases, legislatures have enacted laws providing remedies against social media services and others that substantially overlap the plaintiffs’ claims. No matter what happens in the trials, social media services also will have to avoid or overturn those laws as well if they hope to retain the status quo.

Due to the legal pressure from the jury verdicts and the enacted and pending legislation, the social media industry faces existential legal liability and inevitably will need to reconfigure their core offerings if they can’t get broad-based relief on appeal. While any reconfiguration of social media offerings may help some victims, the changes will almost certainly harm many other communities that rely upon and derive important benefits from social media today. Those other communities didn’t have any voice in the trial; and their voices are at risk of being silenced on social media as well.

* * *

I did an interview with a reporter in response to this statement:

Reporter: “Could you say a bit more about how Section 230 might be back in play during the appeal? Do you believe the court’s ruling that Section 230 didn’t apply will be a big facet of the defendants’ argument during appeal?”

Me: The lower court rejected Section 230’s application to large parts of the plaintiffs’ case, holding that the claims sought to impose liability on how social media services configured their offerings and not third-party content. But social media’s offerings consist of third-party content, and the configurations were publishers’ editorial decisions about how to present it. So the line between first-party “design” choices and publication decisions about third-party content seems illusory to me. An appellate court will have to address this.

Reporter: “are you saying it’s likely they’ll appeal on the grounds that social media isn’t a product like tobacco, and argue that the real cause of harm was something else (family life, school, etc)?”

Me: KGM’s life was full of trauma. The social media defendants argued that the harms she suffered were due to that trauma and not her social media usage. (Indeed, there was some evidence that social media helped KGM cope with her trauma). It is highly likely that most or all of the other plaintiffs in the social media addiction cases have sources of trauma in their lives that might negate the responsibility of social media.

Reporter: “Do you think the verdict in the LA trial sets any legal precedent?”

Me: This is just one of three bellwether trials, so the trial was designed to provide one datapoint about potential liability. Having said that, regulators and plaintiffs around the globe are surely going to feel emboldened by the jury verdict to impose their views on how social media services should publish content.

Reporter: “Does this verdict make it more likely that the others will have a similar outcome?”

Me: Not necessarily. Both the plaintiff and defense lawyers will iterate their presentations and hone their messages for the next trials. Also, the victims’ cricumstances will be different. Further, the jury verdict was not unanimous, so a different jury might have reached a different outcome.

Reporter: “Do you think the defendants/social platforms will have to reconfigure their core offerings? And if so, what will it take?”

Me: The legislation being passed around the country and the globe are already going to require major changes to social media. It remains to be seen if the social media services can find reasons to overcome the legislative requirements. If not, the legislatures will keep mandating changes to control social media publication decisions in every respect. For now, it’s not clear yet how social media services will have to change to satisfy the large number of lawsuits and legislative orders they are facing. A reminder that any configuration changes don’t just affect the victims, they affect everyone. As a result, social media users who find the services beneficial and helpful today might anticipate that the services will become less so over time.

The post Comments on the Jury Verdict in the Los Angeles Social Media Addiction Bellwether Trial (Expanded/Updated) appeared first on Technology & Marketing Law Blog.

The decision reaches the right outcome. It has been unconscionable that copyright owners keep trying to hold Internet access providers liable for the acts of their subscribers. I hope this decision puts an end to that litigation genre.

Thomas’ opinion potentially makes major changes to venerable common law doctrines. It seemingly overrides the decades-old Gershwin standards for contributory copyright infringement and instead offers two ways for copyright owners to establish contributory copyright infringement: (1) inducement, or (2) the service is “tailored” to infringement. The “tailored to infringement” standard is brand-new; Thomas grabbed it from Ginsburg’s non-dispositive concurrence in the Grokster case. Because “tailored to infringement” has never been the governing standard before, there will be substantial confusion in the lower courts trying to figure out how to apply it.

Thomas’ opinion defines “tailored to infringement” as “not capable of substantial or commercially significant noninfringing uses.” This resurrects the Sony v. Universal standard for contributory infringement from over 40 years ago, which largely got put on hold after the Grokster case 20 years ago. Because it’s not been well-explored since 2006, we’re not sure what this phrase means in the modern Internet age. On balance, the old Sony standard should favor future defendants, but copyright owners will invest a lot of money to try to water it down and undermine it.

I do note the irony that Sony created the defense-favorable legal standard in 1984 that is now being cited against it in 2026. As the Bible verse goes, “You reap what you sow.”

My blog post on the 2024 Fourth Circuit opinion (now overruled).

The post Quick Comments on the SCOTUS Cox v. Sony Ruling appeared first on Technology & Marketing Law Blog.

Executive Lens LLC v. Rapkin, 2026 WL 776965 (N.D. Cal. March 19, 2026)

“Plaintiff is the sole owner of the copyrights in the videos published on the YouTube channels ‘Denver Metro Audits’ and ‘Denver Metro Audits 2.0.'” This is my second time blogging about those channels.

A pseudonymous user, “The Exposer,” posted at least 31 videos to YouTube allegedly containing copyrighted material from the plaintiff. (The “Exposer” moniker made me think of the stage names “The Crusher” and “The Masked Terror” from Bunny Hugged).

The plaintiff sent takedown notices targeting 27 of The Exposer’s videos. YouTube removed 17 videos. (The Exposer made 13 of the 14 other videos private). Allegedly, “At least eight of the 17 videos contained no commentary of any kind.” Rapkin, representing The Exposer, filed counternotifications for the 17 removed videos, allegedly without actually reviewing the videos. The plaintiff filed a copyright infringement lawsuit to block YouTube’s reinstatement of the counternoticed videos. The plaintiff also claims Rapkin’s counternotices violated 512(f). The court denied Rapkin’s motion to dismiss.

Damages

Rapkin argued that the plaintiff didn’t suffer any damages if YouTube never reinstated the videos. The court says the threat of reinstatement is good enough to support 512(f) damages. The court distinguishes Amaretto v. Ozimals, the old virtual horses v. bunnies case:

Amaretto limited liability to misrepresentations in a takedown notice that led to an actual takedown of a video, not to misrepresentations in a counter notification that led to reinstatement. This distinction is important because takedown notices prompt the service provider to “expeditiously … remove” the material, while counter notifications force the user into time-sensitive litigation to prevent reinstatement

Is there really a material difference between takedown notices and counternotices? Takedown notices have major implications. The legal incentives impel services to remove the content, the removal occurs without any warning to the uploader, and the uploader may have to go to court to rectify the removal. (Services aren’t legally compelled to honor 512(g) counternotifications). So both takedown notices and counternotices are powerful legal tools that (by design) cause the disposition of important legal rights extrajudicially. It would have been helpful for the court to articulate a more detailed explanation about why the shifted leverage from a counternotice is more significant than the shifted leverage from the initial takedown notice, and why that should matter to the 512(f) analysis. This might be a good student paper topic.

Knowing Misrepresentation

512(f) requires that the takedown/counter notice sender has “knowledge” that the notice contains a material misrepresentation. For over 20 years, courts have applied that scienter standard exactingly. Per Rossi, actual knowledge was required, and it was measured subjectively. Increasingly, courts have been open to loosening that subjective standard to include “willful blindness.” That leads to passages like this:

Plaintiff alleges that Rapkin withheld the Exposer’s identity and that the Exposer “publicly boasted about hiding behind Attorney Rapkin and a purported corporate entity to evade accountability, taunting Plaintiff that his identity would never be discovered and he therefore could not be held liable.” Drawing all reasonable inferences in favor of Plaintiff, these allegations support a reasonable inference that Rapkin knew that the Exposer’s subject videos did not contain commentary and was therefore not subject to fair use. Further, Plaintiff sufficiently alleged that Rapkin took deliberate actions to avoid confirming that the subject videos did not contain commentary by not reviewing the videos.

And this is how this 512(f) case survives a motion to dismiss.

Yet, copyright owners send enormous volumes of robo-takedown notices all the time without actually reviewing the subject works, and Rossi says their ignorance is not a problem at all. Did the court bend the scienter standard because it was a counternotification?

The court doesn’t address the problems with potentially imposing potential 512(f) liability on the uploader’s attorney instead of exclusively on the uploader. Among other things, this potentially turns attorney-client communications into discoverable evidence. On the other hand, anyone sending a takedown or putback notice should be doing their homework before submitting the notice! If collapsing the identity of the notice sender means that more copyright enforcement agents/lawyers fear their personal legal liability when zinging 512(c)(3) takedown notices around the Internet on behalf of clients, so be it.

And yet, as I wrote about in my first-hand interactions with Scribd’s defective DMCA procedures, it’s stressful to submit a 512(g) putback notice. In doing so, the submitter must accept jurisdiction in a potentially unfriendly venue, dares the takedown notice sender to initiate a copyright infringement lawsuit (to veto reinstatement), and invites a 512(f) lawsuit–per this case, potentially with a higher risk of 512(f) liability than the initial takedown notice sender faced. I was so confident in my Scribd upload that I submitted the 512(g) putback notice anyway. However, most people who understand the risks of putback notices might rationally acquiesce to bogus takedowns to reduce their legal exposure. This is another example of how 512(c)’s notice-and-takedown mechanisms may not be properly fine-tuned to reflect the power dynamics.

Doeman Music Group Media and Photography LLC v. George, 2026 WL 789495 (S.D.N.Y. Jan. 8, 2026). The complaint.

This is a default judgment, which is the primary way that plaintiffs win 512(f) cases. Even so, this plaintiff blows the layup and gets a small fraction of its requested relief.

[Note: this is a magistrate judge’s recommendation, but because the plaintiff delayed serving it on the defendant, the supervising judge has not yet reviewed it.]

I previously summarized this case:

The case involves George’s 3 second vocal contribution to a song. George was paid for her contribution, got named in the song credits, and allegedly operated under the direction of the song creator (but apparently without a license?). George later demanded that her name be removed from the credits. When rebuffed, George sent takedown notices to various services, claiming copyright ownership of the song. (Wow, this is a deja vu of Innocence of Muslims). The record label sued George for 512(f).

In my prior post, I raised questions about whether George ever got properly served. Inadequate service may be a contributing factor to the default judgment.

Much of the most recent opinion explains how the plaintiff made unsupported evidentiary claims about its damages. The court awards $360.63 of lost streaming revenue from the takedown, calculated as:

(Plaintiff’s total [Spotify] streams to date on a comparable song less Scary Movie’s total streams to date) * (an estimated $0.0018849628 per stream) = $160.63. Plaintiff said that if one considers other streaming platforms, the additional lost streaming revenue for Scary Movie would be $200.00

The calculation is precise to the penny on the lost Spotify revenues from the song, even though the formula is based on streams for a “comparable song” (whatever that means). Yet, the other platforms’ lost revenue is just a round $200 with no supporting data at all. The court lets that obvious discrepancy go.

[The calculation that Spotify pays $0.0018849628 per stream seemed a little low and obviously implied faux precise (accurate to 10 digits????)].

The plaintiff also sought lost live performance bookings ($20k) and his costs of reuploading the songs (allegedly 250 hours at $130/hr). The court refuses both requests because they conflate the identity between the artist and the label.

The court awards the following costs:

• $2,500.00 in out-of-pocket fees paid to DMCA counsel
• $400.00 in pre-filing services in connection with George’s Take-Down ($150.00 “for assistance with effectuating a counternotice” to George’s Take-Downs and $250.00 to consult “another private attorney” about George’s Take-Downs <== both of these sounded a little fishy)
• $1,202.00 in taxable costs ($800 process server and $402 complaint filing fee)

The plaintiff then requested over $57k of attorneys’ fees: “Grimm billed 52.4 hours on this case at an hourly rate of $450; Keenen billed 72.9 hours of work on this case at an hourly rate of $400.” The court haircut the billable rates to $400 for Grimm and $300 for Keenan and haircut the hours to 42.5 total to exclude time spent working on other defendants.

In total, the court awards about $19k: $14.6k of attorneys’ fees, $4.1k of costs, and the remainder the lost streaming revenues. Given that the plaintiff made an unopposed ask of about $120k of damages and attorneys’ fees, getting only about 1/6 that amount probably feels a little disappointing and embarrassing. And it’s also likely the $19k is uncollectible. Still, a 512(f) damages award of any amount, even in a default judgment, is a rare outcome, so…good job I guess?

BONUS: Pandvil LLC v. Pino, 2026 WL 820817 (D. Ariz. March 25, 2026). The defendant used 512(c)(3) takedown notices to (improperly) remove a lucrative Fortnite island. In response to the 512(f) claim, the court awards $501k in damages plus $10k fees and costs. This would be a big deal if it weren’t a default judgment where the court accepted the plaintiff’s arguments without challenge.

BONUS 2: Charles F. Wachendorfer Consulting Group LLC v. Think2Perform Exam Services Co., 2026 WL 836902 (D. Minn. March 26, 2026). “Courts have held that tortious-interference claims predicated solely on false DMCA takedown notices are preempted by the DMCA….the heart of Wachendorfer’s claim for tortious interference with economic advantage is the false takedown notice. If the notice has caused injury to Wachendorfer—or if Wachendorfer suffers injury in the future caused by the notice—then Wachendorfer can seek damages and other remedies under the DMCA.”

Prior Posts on Section 512(f)

* It Takes a Lot for 512(f) Claims to Survive a Motion to Dismiss–Cordova v. Huneault
* Copyright Takedown Notices May Be Affecting Your Washing Machine Options–Ningbo Yituo v. GoPlus
* 512(f) Claim Sent to Trial (Which Didn’t Happen)–Leszczynski v. Kitchen Cube
* 512(f) Doesn’t Support Preliminary Injunction–BViral v. TheSoul
* In 512(f), the “F” Stands for “Futility”–Shaffer v. Kavarnos
* Does Anyone Still Care About NFTs? (Yuga Labs, LLC v. Ripps) — Guest Blog Post
* Viral DRM Awarded Damages for Its 512(f) Claims, But At What Cost?
* Big YouTube Channel Gets TRO Against Being Targeted by DMCA Copyright Takedown Notices–Invisible Narratives v. Next Level Apps
* The Competition Between Temu and Shein Moves Into a Courtroom–Whaleco v. Shein
* Copyright Battles Over City Council Videos
* Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG
* Plaintiffs Make Some Progress in 512(f) Cases
* 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial
* 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox
* Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! –Alper Automotive v. Day to Day Imports
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment

The post Does 512(f) Apply Differently to Counternotices Compared to Takedown Notices? appeared first on Technology & Marketing Law Blog.

If this were a framed original of the trading card, the First Sale doctrine should apply. If it were a counterfeit version of the trading card, it would be an obvious legal violation. But this appears to be a photo of the trading card that’s printed. No reasonable buyer would believe this is the original trading card.

Upper Deck nevertheless seeks to enforce its IP rights in the print, both in the Michael Jordan imagery (it received via a license) and its hologram mark (the black shape in the upper left of the print–see the outline from the trademark registration). I believe the original card has actual holographic imagery in the mark’s location to reinforce the original’s authenticity. (Holograms are harder and more expensive to mimic, so they are routinely used as an anti-counterfeiting or security device). So when the reproduction lacks the holographic component of the mark, what does that signify? To me, it’s a strong signal to consumers that the copy isn’t being presented as authentic. Does that demonstrated lack of authenticity have any relevance to the trademark considerations? Unfortunately, the court doesn’t address that issue.

Trademark Dilution

The court says the hologram trademark isn’t sufficiently famous to qualify for dilution protection.

Trademark Infringement

• Mark strength. Even though the hologram mark isn’t famous, it’s a strong mark.
• Proximity of goods. Both offer sports memorabilia.
• Mark similarity. Identical.
• Actual confusion. The court presumes actual confusion from the mark’s identicality, with a bonus gratuitous shoutout to initial interest confusion because why not?
• Marketing channels. Both sell on the Internet.
• Purchaser care. An authentic Michael Jordan trading card depicted in the image above would sell for upwards of $1M. Pixels sells the reprint for $70. Purchasers will note the differences.
• Intent. “the mere existence of [Pixels’] notice-and-takedown policy does not indicate that Pixels has knowledge about the infringing use of the Upper Deck Hologram Mark in particular….Upper Deck has not indicated it attempted to take advantage of Pixels’ notice-and-takedown procedure to notify Pixels’ DMCA agent as to Pixels’ infringing use of the Upper Deck Hologram Mark.” How hard would it have been for Upper Deck to send takedown notices?
• Product line expansion. No evidence.

The court summarizes that 5 factors favor Upper Deck, 2 favor Pixels, and one is neutral. That’s enough to defeat Pixels’ summary judgment motion.

False Advertising

The opinion shifts to Upper Deck’s licensed interests in Michael Jordan’s depiction.

Standing. “a reasonable jury could find that Pixels’ use of Jordan’s likeness in its own similar products could result in a loss of sales of Upper Deck’s products and threatens Upper Deck’s commercial interests.”

False Advertising. I guess Pixels’ advertising claim is that Pixels has the right to market Michael Jordan trading cards when Upper Deck has the exclusive rights? The court says Upper Deck showed enough to survive summary judgment.

False Association. The false association analysis triggers a new round of Sleekcraft factor review, this time focused on Michael Jordan’s trademarks. The result is even more favorable to Upper Deck, so it again defeats Pixels’ summary judgment motion.

Publicity Rights

Pixels challenged Upper Deck’s exclusive right to the Michael Jordan personality. The court says the evidence provided by Upper Deck survives the summary judgment motion.

First Amendment Defense

A Rogers defense goes nowhere. Upper Deck presented “evidence that Pixels used Jordan’s Marks and/or the Upper Deck Hologram Mark in Pixels’ products featuring pictures and photographs displaying Jordan’s likeness. The pictures and photographs of Jordan displayed in Pixels’ products at issue in this action are source-identifying insofar as they contain Jordan’s Marks.”

Section 230

Pixels sought to clean up some of the state law IP and unfair competition law claims per Section 230.

In a footnote, the court acknowledges that Section 230’s IP exception applies to the federal Lanham Act claims but doesn’t apply to state IP claims.

The court summarizes: “while advertising and curating content on websites constitute publishing conduct that can be immunized under Subsection (c)(1), the sale and distribution of physical products does not.” Thus:

Pixels is entitled to Section 230 immunity where Upper Deck seeks to hold it accountable for the advertisement of allegedly infringing goods, or for creating website tools that allow users to search and view allegedly infringing goods based on images uploaded by third parties. However, Pixels is not entitled to Section 230 immunity to Upper Deck’s California state law claims where Upper Deck seeks to hold Pixels accountable for manufacturing and selling the allegedly infringing products listed for sale on its website (e.g., contracting with vendors to manufacture and ship illicit products)

As applied: “Pixels does not create the illicit images of products uploaded and displayed on its site, and Pixels’ website search engine and content filtering tools do not contribute to the creation of those products.” However, Section 230 doesn’t apply to “Pixels’ involvement in offline manufacturing or selling physical prints containing infringing images (e.g., hiring and coordinating with print and shipping vendors, facilitating product returns, offering a money-back guarantee).” It seems pretty straightforward that Section 230 wouldn’t apply to offline activities, no?

* * *

This case raises many complex issues. In addition to the hologram mark issue, this case raises questions about the scope of merchandising rights, the permissibility of displaying historical items such as old sports trading cards, print-on-demand manufacturers’ liability for vendor uploads, and more. The court mostly sidesteps all of these legal complexities. Instead, the opinion narrowly focuses on more technical aspects, such as whether the hologram mark’s shape could be infringed even when it’s being accurately displayed in historical context.

The court’s rejection of most of Pixels.com’s summary judgment motion seems to position Upper Deck’s claims for a trial, unless the parties can figure out a settlement beforehand.

Case Citation: The Upper Deck Co. v. Pixels.com LLC, 2026 WL 776227 (S.D. Cal. March 19, 2026). This is an amended version of the opinion issued on March 6. As the court explains in the first footnote, the prior opinion had errors that the court needed to correct.

Related posts

* DMCA 512(c) Helps Redbubble Defeats Copyright Lawsuit–Wallshoppe v. Redbubble
* Print-on-Demand Service Defeats Fish Illustrator’s Copyright Claim–Tomelleri v. Sunfrog
* Print-on-Demand Services Face More Legal Woes–Canvasfish v. Pixels
* Atari’s Lawsuit Against a Print-on-Demand Service Fizzles Out–Atari v. Printify
* Ninth Circuit Highlights the Messy Law of Contributory Trademark Infringement Online–YYGM v. RedBubble
* RedBubble Gets Another Favorable Ruling–YZ Productions v. RedBubble
* IP Lawsuits Against Print-on-Demand Vendors Continue to Vex the Courts–OSU v. Redbubble & More
* Another Tough Ruling for Print-on-Demand Vendors–Sid Avery v. Pixels
* Print-on-Demand Vendor Doesn’t Qualify for DMCA Safe Harbor–Feingold v. RageOn
* CreateSpace Isn’t Liable for Publishing Allegedly Infringing Uploaded Book–King v. Amazon
* More Evidence That Print-on-Demand Vendors May Be Doomed–Greg Young Publishing v. Zazzle
* Section 230 Doesn’t Protect Print-on-Demand Vendor–Atari v. Sunfrog
* Online Marketplace Defeats Trademark Suit Because It’s Not the “Seller”–OSU v. Redbubble
* Zazzle Loses Copyright Jury Verdict, and That’s Bad News for Print-on-Demand Publishers–Greg Young Publishing v. Zazzle
* Trademark Injunction Issued Against Print-on-Demand Website–Harley Davidson v. SunFrog
* DMCA Safe Harbor Doesn’t Protect Zazzle’s Printing of Physical Items–Greg Young Publishing v. Zazzle
* CafePress May Not Qualify For 512 Safe Harbor – Gardner v. CafePress
* Cafepress Suffers Potentially Significant Trademark Loss for Users’ Uploaded Designs
* Life May Be “Rad,” But This Trademark Lawsuit Isn’t–Williams v. CafePress.com
* Print-on-Demand “Publisher” Isn’t Liable for Book Contents–Sandler v. Calcagni
* Griper Selling Anti-Walmart Items Through CafePress Doesn’t Infringe or Dilute–Smith v. Wal-Mart
* CaféPress Denied 230 Motion to Dismiss–Curran v. Amazon

The post What Does a Hologram Trademark Signify When the Hologram Isn’t There?–Upper Deck v. Pixels appeared first on Technology & Marketing Law Blog.