In short, California enacted the “Yelp Law” to restrict businesses from trying to stop their consumers from posting online reviews. The statute is divided into two main operative parts. (a)(1) targets TOS provisions that restrict consumer reviews. (a)(2) targets businesses’ efforts to enforce those TOS provisions. A small team of plaintiff lawyers have been cruising the Internet, looking for TOS provisions that they claim are consumer review restrictions, and then asserting (a)(1) violations for those TOS provisions hoping for payoffs. In these enforcements, no consumer has actually been stifled in their remarks (that would support an (a)(2) violation). Worse, the plaintiffs’ lawyers often fail to display basic reading comprehension because their claims target generic and standard TOS provisions that have nothing to do with consumer reviews.

[In this case, the offending TOS provisions said that consumers “agree not to submit content to the website “‘intended to cause commercial harm’” to Peet’s or to use Peet’s trademarks “‘in any manner … that would disparage’ Peet[’s] products or brands.” These are ill-advised TOS provisions that should be rewritten, but they are also clearly not meant to restrict consumers’ abilities to post reviews.]

The Moss decision rejected similar claims because the court concluded (a)(1) had no private right of action. However, that decision was non-precedential. Now, a week later, a different California Appeals Court panel reaches the same conclusion in a precedential opinion, Arterberry v. Peet’s. The end of the Yelp Law drive-by enforcements is getting closer.

The Arterberry opinion summarizes its question and answer:

May a consumer seek monetary penalties against a company for including a contractual provision made illegal under section 1670.8 as part of the terms and conditions on its website, even if the company never threatened to enforce that provision or take any action against the consumer? We hold section 1670.8 outlaws non-disparagement clauses in consumer contracts, but it unambiguously allows a consumer to bring a suit for monetary penalties only when a seller attempts to enforce such a provision or otherwise seeks to penalize a consumer.

The Arterberry opinion itself doesn’t mention the Moss opinion (which was non-precedential, and the opinions were likely drafted in parallel with each other), and the Arterberry opinion claims it is addressing a matter of “first impression” (with acknowledgements of the Shofet and Anderson federal district court opinions, neither of which bind the court, but no acknowledgement of Moss). Despite the parallel rulings, Arterberry follows the same basic logic as the Moss opinion.

The Arterberry opinion engages in a little more depth with the legislative history. The court concludes:

Section 1670.8 applies to everyone, be it a Fortune 500 company or a small family business. If, as the plaintiffs allege, the use of a nondisparagement clause created a cause of action with respect to each California resident who visited a website, with a civil penalty of up to $2,500 for each such resident, then a relatively small business with 10,000 online California customers would face up to $25,000,000 in penalties for using insufficiently precise content moderation and trademark enforcement language in the terms and conditions of its website. The same business would face no more than $5,000 in penalties for actually threatening or seeking to penalize a consumer for posting a negative review. In the more than 400 pages of legislative history that the plaintiffs submitted for our review, we see nothing to suggest the Legislature intended the statute to work this way.

(To be fair, a $5k financial deterrent against suppressing consumer reviews may be too light, just as a $25M penalty for poor TOS drafting would be way too heavy. But the Yelp Law doesn’t rely solely on a private right of action; the AG’s office can enforce it too).

As I mentioned in my prior post, the mere presence of anti-consumer review clauses in TOSes could potentially chill consumers from posting reviews, even if the business never affirmatively asserts that clause. Other laws may redress that concern. And either way, the current batch of (a)(1) enforcements are not the right solution.

I wonder if the unsuccessful plaintiffs’ lawyers will ask the legislature to “fix” the statutory drafting, claiming that the courts have left consumers vulnerable to businesses’ anti-review efforts. It’s the kind of story that some legislators would be sympathetic to–if they don’t do their homework about the abuses already taking place. Even without a legitimate private right of action, plaintiffs’ lawyers have used (a)(1) to cause chaos in court and extract undeserved concessions. We need less of that, not more.

Case Citation: Arterberry v. Peet’s Coffee, Inc., 2026 WL 2185136 (Cal. App. Ct. July 29, 2026)

Selected Blog Posts Regarding 1670.8

• Appeals Court Shuts Down Bogus Private Enforcements of the ‘Yelp Law’–Moss v. GoDaddy
• Catching Up on the Bogus “Yelp Law” Litigation Campaign–Tao v. Uniqlo
• Amazon Must Defend “Yelp Law” Claim–Ramos v. Amazon
• Courts Are Rejecting Attempts to Weaponize Laws That Protect Consumer Reviews
• Businesses Cannot Contractually Ban “Abusive” Consumer Reviews
• California Tells Businesses: Stop Trying To Ban Consumer Reviews (Forbes Cross-Post)

The post Another Court Shuts the Door on “Yelp Law” Drive-By Lawsuits–Arterberry v. Peet’s appeared first on Technology & Marketing Law Blog.

The court accepts Harbor Freight’s claim that the “2024 Cookie Banner was displayed on each page on the Website until the user interacted with it, even if the user had previously visited the Website and interacted with the prior cookie banner.”

In 2025, Harbor Freight added an arbitration clause to the TCU. The TCU also contains a class action waiver.

The named plaintiff, Alba, says he visited the website at least once a year since 2020, including after the arbitration clause was added to the TCU. Alba allegedly selected the “Reject All Cookies” button.

What Terms Apply

The court accepts Harbor Freight’s evidence of its user interface:

Harbor Freight has satisfied its burden of proof and demonstrated that Alba was shown the 2024 Cookie Banner. It is undisputed that Alba visited the Website as recently as October 2025. Harbor Freight’s unrebutted evidence that the 2024 Cookie Banner was shown to all users following October 31, 2024, is therefore sufficient to demonstrate that Alba must have been shown the revised banner during his recent visits to the Website….

Alba did not submit a declaration or any other evidence denying that the Website displayed the 2024 Cookie Banner when he visited it in 2025

Alba pointed to an article that says that normally, in the EU, a website doesn’t redisplay the cookie banner to consumers who have already made a selection. The court says this article doesn’t raise any questions about the activities taking place in the US.

Formation

Turning to formation, the court characterizes the cookie banner as a “sign-in-wrap,” which takes us to the now-familiar Chabolla considerations.

Transaction Context. Favors Alba, because “simply browsing a website is insufficient to put the user on heightened notice to anticipate terms of service.”

Visual Design. The court says the offer notice was reasonably conspicuous:

First, the font size used for the advisory paragraph, hyperlinked Terms and Conditions, and buttons was the same. Second, the advisory paragraph displayed in black text against a white background, whereas the Terms and Conditions and Privacy Policy were each bolded, underlined, and in red font. Thus, the Terms and Conditions “stood out from the surrounding text to indicate it was clickable.” Third, the hyperlink to the Terms and Conditions was directly to the left of the three buttons and contained within the pop-up banner, meaning that a Website user could not click on any of the buttons without also seeing the Terms and Conditions displayed on their screen. Finally, there was nothing else cluttering the cookie banner, and the advisory paragraph expressly notified users that “[b]y clicking ‘Accept All Cookies,’ ‘Reject All Cookies,’ ‘Cookie Settings,’ or continuing to browse our website, you acknowledge and agree to our Terms and Conditions of Use.”

A few things:

• The cookie banner excerpt was presented in isolation, not in the context of the entire page. I find these kinds of excerpts unhelpful and maybe misleading. Is the offer conspicuous when looking at the whole page?
• Even in the excerpt, the font is small. It’s blurry in the screenshot I present above (taken from the court opinion).
• Although there isn’t a ton of text, the consumer would have to wade through the cookie discussions to see that the decision to proceed has implications far beyond cookies.

The court distinguishes Chabolla because, in that case, the offer was below the acceptance button such that someone might not look there (here, the text is to the left of the acceptance button). The court says it doesn’t matter that the offer disclosure was at the end of the paragraph block because the TCU links were “bolded, underlined, and in red font, meaning they stood out even without reading the entire paragraph.” Alba also complained that the links to the TCU and privacy policy were “mashed together,” but the court says consumers would recognize the space between them and, either way, still see the TCU reference.

Assent. Alba didn’t challenge assent separately from the disclosure visbility. But I’m stuck on this. Harbor Freight claimed that taking ANY of the following actions was assent: “clicking ‘Accept All Cookies,’ ‘Reject All Cookies,’ ‘Cookie Settings,’ or continuing to browse our website.” This seems extremely expansive. For example, forming the TCUs by continuing to browse is a browsewrap, not a sign-in-wrap. And if someone clicks “cookie settings,” presumably to investigate the website further, it seems unfair to presume they want to form the contract yet.

Also, I’m willing to bet that a majority of consumers presented with this interface would be shocked to learn that “reject all cookies” meant “accept all terms,” including an arbitration clause in the TCU. Yes, that is technically what the disclosures say, but it requires a lot of mental work to put all of this together. It also raises potentially interesting logic puzzles, like what if the cookie policies’ rules about declined cookies and the TCU terms are in conflict with each other? (Nothing in this case suggested that, but I’m raising the possibilities).

Implications

For another case upholding TOS formation via cookie banners, see LB v. LinkedIn.

While I think jamming Alba with the TCU terms when he declined cookies was a raw deal, I’ll note the plus side: Harbor Freight wisely used the engagement with the cookie banner for more than resolving the cookie policy. If you’re going to force users to click, go for the gusto and get them to agree to the TOS at the same time like Harbor Freight did.

The court orders Alba’s case to arbitration. However, another plaintiff in the case took all relevant actions before the arbitration clause was added to the TCU. That plaintiff’s claims are stayed until the arbitration resolves.

For more on cookie banners, you might be interested in Kate Klonick, Ban Cookie Banners: A Case Study in Tech Regulation. I don’t agree with all of her arguments, but I heartily endorse the article’s bottom line that the EU and other countries should reconsider cookie banner mandates (and, in my opinion, all other government-mandated interstitials that break the web’s “click-and-go” paradigm).

Case Citation: Alba v. Harbor Freight Tools USA, Inc., 2026 WL 2161637 (N.D. Cal. Juy 27, 2026)

The post When You Reject Cookies, You Might Be Agreeing to Arbitration–Alba v. Harbor Freight appeared first on Technology & Marketing Law Blog.

If you’re an academic and would like a free evaluation PDF, email me. I can also share my course slide deck (over 400 slides). You might also check out (1) my Internet Law course page, which includes 29 years of syllabi, old exams, and sample answers, (2) my article on “Teaching Cyberlaw,” (3) my blog post on teaching Internet Law as an online-only course, and (4) my Canvas modules for my Fall 2021 online-only course (I can email you my most current modules on request).

* * *

Last year, I made multiple big changes to the casebook. In contrast, this year, I only made one big change: I added the Cox v. Sony opinion and deleted Grokster and the copyright liability excerpt from the Frontier case. Due to the Cox opinion, I rewrote a lot of the copyright chapter.

Other changes of note: I added a new “Short Primer on Tracking Technologies” (an excerpt from Doe v. Adventist Health System/West). I added new notes about trespass to chattels and the Coase Theorem, the SAD Scheme, the Social Media Addiction cases, and more. I also rewrote the section about geolocation technologies.

On top of all of that, as usual, I made hundreds of edits throughout the book.

* * *

Over the years, I’ve posted a number of book excerpts, including:

• The entire chapter on online contracts. The 2025 version is available. The chapter would be a helpful supplement to courses wishing to cover online contract formation.
• Primer on CCPA/CPRA (partially deprecated)
• Primer on FOSTA
• Primer on the Copyright Claims Board (CCB) (now deleted)
• Primer on Section 230
• Excerpt on right to be forgotten
• Excerpt on CFAA/Nosal/Power Ventures (now deleted)
• Excerpt on transborder content enforcement
• Excerpt on Brazil’s Marco Civil (now deleted)
• Excerpt on notes about UMG v. Shelter Capital

(Some of these excerpts are now outdated, but every year I update everything that’s still in the book).

As always, I invite your comments and questions.

* * *

Table of Contents

I. What is the Internet? Who Regulates It?

Overview
Noah v. AOL (E.D. Va.)
Determining the Geographic Location of Internet-Connected Devices

II. Jurisdiction

Evaluating Personal Jurisdiction
Briskin v. Shopify (9th Cir. en banc)

III. Contracts

Chabolla v. ClassPass (9th Cir.)
Godun v. JustAnswer (9th Cir.)
Canteen v. Charlotte Metro Credit Union (N.C. Sup. Ct.)

IV. Trespass/Computer Fraud & Abuse Act

Review: the Computer Fraud & Abuse Act, 18 U.S.C. §1030 [http://www.law.cornell.edu/uscode/text/18/1030], and California Penal Code §502 [https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=502.&lawCode=PEN]

Overview of Trespass to Chattels Doctrines
X v. Bright Data (N.D. Cal.)

V. Copyright

Copyright Basics (Copyright Office Circular 1)
Note About Fair Use
Griner v. King (8th Cir.)
Cartoon Network v. CSC (2d Cir.)
Cox v. Sony (Sup. Ct.)

Secondary Liability
Review: 17 U.S.C. §512 [http://www.copyright.gov/title17/92chap5.html#512]
Overview of Section 512(c)
UMG v. Shelter Capital (9th Cir. revised opinion)

Recap
Ticketmaster v. RMG

VI. Trademarks and Domain Names

Review: 15 U.S.C. §1114 [http://www.law.cornell.edu/uscode/text/15/1114], 15 U.S.C. §1125 [http://www.law.cornell.edu/uscode/text/15/1125], and 15 U.S.C. §8131 [http://www.law.cornell.edu/uscode/text/15/8131]

Trademark FAQs
Trademark Glossary

Domain Names and Metatags
Review: ICANN Uniform Domain Name Dispute Resolution Policy [https://www.icann.org/resources/pages/policy-2024-02-21-en] and Rules for Uniform Domain Name Dispute Resolution Policy [https://www.icann.org/resources/pages/udrp-rules-2024-02-21-en]

Lamparello v. Falwell (4th Cir.)
Promatek v. Equitrac (7th Cir.) Original Order and Revision

Search Engines
Review: Google’s Trademark Policy [https://support.google.com/adspolicy/answer/6118]

Lerner & Rowe v. Brown Engstrand & Shely (9th Cir.)

Secondary Trademark Liability
Tiffany v. eBay (2d Cir.)

VII. Content Regulation and Child Safety

Pornography Glossary
Moody v. NetChoice (U.S. Sup. Ct.)
A Note on Congress’ Early Regulation of Online Pornography
Free Speech Coalition v. Paxton (U.S. Sup. Ct.)

VIII. Defamation and Information Torts

Bauer v. Brinkman (Iowa Sup. Ct.)
47 U.S.C. §230
An Introduction to Section 230
A Note About FOSTA
Zeran v. America Online (4th Cir.)
Lemmon v. Snap (9th Cir.)
A Note on the Take It Down Act
Twitter v. Taamneh (U.S. Sup. Ct.)
Top Myths About Content Moderation
Section 230 and Foreign Liability for Third-Party Content

IX. Privacy

Review: 16 C.F.R. Part 312 [https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-312]

Excerpts from 16 C.F.R. Part 312, the Children’s Online Privacy Protection Act’s Regulations
Overview of the E.U.’s General Data Protection Regulation (GDPR) and State Consumer Privacy Laws
Short Primer on Tracking Technologies
In re. Pharmatrak (1st Cir.)

X. Spam

Review: CAN-SPAM Act of 2003 [http://www.gpo.gov/fdsys/pkg/PLAW-108publ187/pdf/PLAW-108publ187.pdf] and 16 C.F.R. Part 316 [https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-316]

XI. Social Media

People v. Lopez (Cal. App. Ct.)
Moreno v. Hanford Sentinel (Cal. App. Ct.)

REVIEW QUESTION ANSWERS

The post Announcing the 2026 Edition of My Internet Law Casebook appeared first on Technology & Marketing Law Blog.

Created by ChatGPT May 2026

In a prior post, I surveyed the rates at which consumers do not complete online age authentication processes, what I call the “balk” rate. There is no single canonical balk rate. It varies by destination behind the authentication wall, the method of authentication, demographics, and many other factors.

In my prior post, I mentioned a study from a mostly Carnegie Mellon team. I had seen a summary of the study, but the full study has now been posted. It’s worth digging into the details a little deeper.

Balk Rates by Modality

In the context of trying to complete the academic study, this chart summarizes the study participants’ balk rates by authentication modality:

Note 1: “checkbox” is self-attestation. That’s not credibly considered “authentication.”

Note 2: the email option said the process “analyzes the email’s registration source, associated employer information, and linked financial activities such as mortgages, credit cards, educational records, and consumer behavior patterns.” Though data mining sounds scary, the actual mechanics were vague and required no further effort from the consumer. This rarely will be a realistic option.

If we remove the self-attestation and the incompletely described email review options, consumers balk rates were a minimum of 48%. Study participants were trying to participate in an academic study, not complete a mission-critical life task, but if actual balk rates come anywhere close to 48%, it will completely upend the current Internet.

Efficacy of Balk Rates

The researchers also asked study participants to assess the likely efficacy of the various authentication methods. As you can see, consumers do not regard any of the techniques as particularly effective:

One participant quipped: “Chat gpt provide me an over 18 CA drivers license.”

As a bonus, the researchers said that only 0.86% of the study participants checked the study’s privacy policy. ¯\_(ツ)_/¯

Blog Posts on Segregate-and-Suppress Obligations

• Fifth Circuit Keeps Doing Fifth Circuit Things –SEAT v. Paxton
• How Often Do Consumers Balk at Doing Online Age Authentication?
• Court Enjoins Another Arkansas Segregate-and-Suppress Law–NetChoice v. Griffin
• Too Many Courts Are Letting States Take Wrecking Balls to the Internet (Roundup)
• Texas Judge Enjoins App Store Authentication Law–CCIA and SEAT v. Paxton
• Courts Enjoin Internet Censorship Laws in Louisana and Arkansas
• Challenge to Maryland’s “Kid Code” Survives Motion to Dismiss–NetChoice v. Brown
• My Testimony Against Mandatory Online Age Authentication
• Read the Published Version of My Paper Against Mandatory Online Age Authentication
• Prof. Goldman’s Statement on the Supreme Court’s Demolition of the Internet in Free Speech Coalition v. Paxton
• Court Permanently Enjoins Ohio’s Segregate-and-Suppress/Parental Consent Law–NetChoice v. Yost
• Arkansas’ Social Media Safety Act Permanently Enjoined—NetChoice v. Griffin
• Why I Emphatically Oppose Online Age Verification Mandates
• California’s Age-Appropriate Design Code (AADC) Is Completely Unconstitutional (Multiple Ways)–NetChoice v. Bonta
• Another Conflict Between Privacy Laws and Age Authentication–Murphy v. Confirm ID
• Recapping Three Social Media Addiction Opinions from Fall (Catch-Up Post)
• District Court Blocks More of Texas’ Segregate-and-Suppress Law (HB 18)–SEAT v. Paxton
• Comments on the Free Speech Coalition v. Paxton SCOTUS Oral Arguments on Mandatory Online Age “Verification”
• California’s “Protecting Our Kids from Social Media Addiction Act” Is Partially Unconstitutional…But Other Parts Are Green-Lighted–NetChoice v. Bonta
• Section 230 Defeats Underage User’s Lawsuit Against Grindr–Doll v. Pelphrey
• Five Decisions Illustrate How Section 230 Is Fading Fast
• Internet Law Professors Submit a SCOTUS Amicus Brief on Online Age Authentication–Free Speech Coalition v. Paxton
• Court Enjoins the Utah “Minor Protection in Social Media Act”–NetChoice v. Reyes
• Another Texas Online Censorship Law Partially Enjoined–CCIA v. Paxton
• When It Comes to Section 230, the Ninth Circuit is a Chaos Agent–Estate of Bride v. YOLO
• Court Dismisses School Districts’ Lawsuits Over Social Media “Addiction”–In re Social Media Cases
• Ninth Circuit Strikes Down Key Part of the CA Age-Appropriate Design Code (the Rest is TBD)–NetChoice v. Bonta
• Mississippi’s Age-Authentication Law Declared Unconstitutional–NetChoice v. Fitch
• Indiana’s Anti-Online Porn Law “Is Not Close” to Constitutional–Free Speech Coalition v. Rokita
• Fifth Circuit Once Again Disregards Supreme Court Precedent and Mangles Section 230–Free Speech Coalition v. Paxton
• Snapchat Isn’t Liable for Offline Sexual Abuse–VV v. Meta
• 2023 Quick Links: Censorship
• Court Enjoins Ohio’s Law Requiring Parental Approval for Children’s Social Media Accounts–NetChoice v. Yost
• Many Fifth Circuit Judges Hope to Eviscerate Section 230–Doe v. Snap
• Louisiana’s Age Authentication Mandate Avoids Constitutional Scrutiny Using a Legislative Drafting Trick–Free Speech Coalition v. LeBlanc
• Section 230 Once Again Applies to Claims Over Offline Sexual Abuse–Doe v. Grindr
• Comments on the Ruling Declaring California’s Age-Appropriate Design Code (AADC) Unconstitutional–NetChoice v. Bonta
• Two Separate Courts Reiterate That Online Age Authentication Mandates Are Unconstitutional
• Minnesota’s Attempt to Copy California’s Constitutionally Defective Age Appropriate Design Code is an Utter Fail (Guest Blog Post)
• Do Mandatory Age Verification Laws Conflict with Biometric Privacy Laws?–Kuklinski v. Binance
• Why I Think California’s Age-Appropriate Design Code (AADC) Is Unconstitutional
• An Interview Regarding AB 2273/the California Age-Appropriate Design Code (AADC)
• Op-Ed: The Plan to Blow Up the Internet, Ostensibly to Protect Kids Online (Regarding AB 2273)
• A Short Explainer of Why California’s Social Media Addiction Bill (AB 2408) Is Terrible
• A Short Explainer of How California’s Age-Appropriate Design Code Bill (AB2273) Would Break the Internet
• Is the California Legislature Addicted to Performative Election-Year Stunts That Threaten the Internet? (Comments on AB2408)
• Omegle Denied Section 230 Dismissal–AM v. Omegle
• Snapchat Isn’t Liable for a Teacher’s Sexual Predation–Doe v. Snap
• Will California Eliminate Anonymous Web Browsing? (Comments on CA AB 2273, The Age-Appropriate Design Code Act)
• Minnesota Wants to Ban Under-18s From User-Generated Content Services
• California’s Latest Effort To Keep Some Ads From Reaching Kids Is Misguided And Unconstitutional (Forbes Cross-Post)
• Backpage Gets Important 47 USC 230 Win Against Washington Law Trying to Combat Online Prostitution Ads (Forbes Cross-Post & More)
• Backpage Gets TRO Against Washington Law Attempting to Bypass Section 230–Backpage v. McKenna
• MySpace Wins Another 47 USC 230 Case Over Sexual Assaults of Users–Doe II v. MySpace
• MySpace Gets 230 Win in Fifth Circuit–Doe v. MySpace
• Website Isn’t Liable When Users Lie About Their Ages–Doe v. SexSearch

The post More Data on Online Age Authentication Balk Rates appeared first on Technology & Marketing Law Blog.

(a)(1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.

(a)(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section.

These laws seek to foster consumer reviews by stopping businesses from contractually restricting such reviews. The same principle animates the Consumer Review Fairness Act.

While pro-consumer review laws are good policy, California dubiously attached a private right of action to 1670.8. In its wake, a small group of lawyers have initiated a spate of bogus lawsuits. The lawyers overread businesses’ TOSes, twisting ordinary TOS provisions into putative restrictions on consumer reviews. Enforcement then becomes basically point-and-click. The lawyers search for the targeted TOS provision and then sue the associated business without showing any harm to any consumer. At that point, it becomes a numbers game: file enough lawsuits to cash in from quick but undeserved settlements.

The California appeals court ruling rejects this litigation scheme. The court says 1670.8’s private right of action only applies to (a)(2), not (a)(1). This distinction requires the lawyers to have actual gagged consumers to proceed. Virtual drive-by litigation based solely on TOS language, without more, won’t cut it.

The panel reaches this conclusion because only (a)(2) contains the “it shall be unlawful” grammar that seemingly triggers penalties:

The differences between the two subdivisions permit a reasonable inference that the Legislature intended for subdivision (a)(1) to operate as a shield and for subdivision (a)(2) to provide the consumer with a sword when a seller threatens or takes action to enforce a waiver to stifle consumer speech.

On this point, the court sides with the Shofet case and ignores the Anderson case that reached the opposite conclusion.

The “shield” reference is confusing. A shield for whom, and against what? Later, the court says that TOS provisions that violate (a)(1) are unenforceable. However, that seems to render (a)(1) superfluous. If the legislature attaches a penalty to enforcing the TOS provision, doesn’t that penalty also simultaneously render the TOS provision unenforceable, at least implicitly?

This opinion isn’t precedential, so it is definitely not the final word on the matter. However, it’s also clear that this litigation genre is doomed, one way or another. The sooner, the better.

Even if (a)(1) doesn’t have a private right of action, businesses should still scrub their TOSes for any provisions that might be construed as restrictions on consumer reviews. Among other problems, enforcing those provisions could still trigger the private right of action.

Case Citation: Moss v. GoDaddy.com, Inc., 2026 WL 2122990 (Cal. App. Ct. July 23, 2026)

Selected Blog Posts Regarding 1670.8

• Catching Up on the Bogus “Yelp Law” Litigation Campaign–Tao v. Uniqlo
• Amazon Must Defend “Yelp Law” Claim–Ramos v. Amazon
• Courts Are Rejecting Attempts to Weaponize Laws That Protect Consumer Reviews
• Businesses Cannot Contractually Ban “Abusive” Consumer Reviews
• California Tells Businesses: Stop Trying To Ban Consumer Reviews (Forbes Cross-Post)

The post Appeals Court Shuts Down Bogus Private Enforcements of the ‘Yelp Law’–Moss v. GoDaddy appeared first on Technology & Marketing Law Blog.

The Court Ruling

The court addresses Doe’s concerns via the “expectation of privacy” factor for considering subpoenas, which is a little tone deaf because there are other major social considerations at play beyond just privacy. In any case, those expectations of privacy depend on the case’s substantive merits, which in turn depends on copyright fair use. The court isn’t very sympathetic to Doe’s fair use arguments. It summarizes: “With the first and third factors clearly favoring Petitioner, the second factor only somewhat favoring Doe, and the fourth factor favoring Doe, the Court cannot find at this stage that Doe’s archive constitutes a fair use of Petitioner’s works.”

Nature of Use. Doe’s website had no hint of commerciality, and its linguistic tools were transformative. However, the archive was not transformative. The court points out how Google Books only displayed snippets, while the archive displayed full texts, so this was more like Internet Archive’s Free Digital Library. “[W]hile the material in the archive is plainly necessary for Doe’s non-infringing uses of the material, it does not follow that Doe’s publication of the entirety of that material online, separate and apart from Doe’s transformative commentary, is also a transformative use—especially because Doe’s analytic tools have continued functioning after the archive was taken down.”

Nature of Work. “Because the work at issue here is published and contains a mix of factual and expressive content, this factor—if it favors any side here—slightly favors Doe.”

Amount Taken. “the archive’s copying is not proportionate to Doe’s goals….Doe’s critical goals could have been achieved with more tailored disclosure of the works….Doe does not explain why the public disclosure of the full copyrighted work was necessary to retain credibility—Doe could have disclosed only parts of the works they directly compared or critiqued, or disclosed the full works only privately to Doe’s critics rather than the Internet writ-large.”

Market Effect. The Jehovah’s Witnesses “license copies of the materials included in the archive for research use…That is not inconsistent with Petitioner publishing the works free of cost: Petitioner may make the works publicly and freely available to read, but not to copy….the archive could, at least for some, supplant Petitioner’s own websites and archives, by becoming available to Internet users writ-large through search results.” But, the Jehovah’s Witnesses didn’t provide evidence that it charges for its licenses, so the archive may not have an economic impact on it. That tips this factor towards Doe.

In total, the court views the fair use factors as a mixed bag. As a result, the court says that Jehovah’s Witnesses is entitled to the unmasking subpoena because it meets the other qualifications for subpoena issuance, and the fair use defense wasn’t strong enough to flip that.

Implications

I imagine this case will be appealed to the Second Circuit. There are several good appealable angles, including how courts should consider the free speech implications of 512(h) subpoenas and whether the district court should have been more charitable to Doe’s fair use arguments.

The court opinion doesn’t acknowledge the greater context of how religious institutions use copyright law to target and suppress online critics. These scuffles are as old as the commercial Internet. For example, the seminal 1995 RTC v. Netcom case–which established the notice-and-takedown model that turned into the DMCA 512(c)–was a Church of Scientology enforcement action against an online critic. Earlier this year, Prof. Cathay Smith covered another case in this genre (“A Religious Organization is Suing its Critics, and the Weapon of Choice is Copyright—RRT v. Cheryl Bawtinheimer“). Also see my paper with Prof. Silbey on copyright as a memory hole.

Religious institutions are entitled to create and enforce copyrights just like everyone else, but their enforcement practices often look and feel different than most other copyright owners. For example, the opinion noted that the Jehovah’s Witnesses claim to have a licensing program for researcher copying of its materials, but there isn’t evidence that those licenses generate revenue. Instead, the copyright licensing scheme most likely advances non-financial interests–such as the suppression of criticism–that aren’t really what copyright law was designed to do. Indeed, even in this era of extraordinary transparency, some religious institutions still effectively prevent “outsiders” from knowing about–and thus potentially critiquing–their inner workings. Archives of religious texts are a crucial counterbalance to that secrecy and any associated avoidance of accountability. It would have been better if the court had engaged with this broader context, rather than essentially treat this as a routine one-off interaction between a religious institution and an unhappy member.

A reminder that 512(h) is a fast lane to unmask online actors, and it was written without adequate privacy safeguards. In this case, the Jehovah’s Witnesses can potentially impose a range of extrajudicial consequences on Doe once unmasked, such as excommunication. This expanded toolkit of extrajudicial remedies is another way that religious institutions’ copyight enforcements are different than other copyright owners. Troubingly, 512(h) hands them a powerful and dangerous tool for misuse and abuse.

Also, I was confused about Cloudflare’s status as the target of the 512(h) subpoena. The court glosses over the services Cloudflare provides to Doe. Courts have repeatedly said that 512(h) doesn’t apply to IAPs because they don’t host anything. Is Cloudflare more like a host or an IAP in this circumstance? Unless the court explains how Cloudflare qualifies as the website’s host, it would have been helpful for the court to consider the implications of applying 512(h) to website vendors.

Case Citation: In re: DMCA Subpoena to Cloudflare, Inc., 2026 WL 2110881 (S.D.N.Y. July 21, 2026). The CourtListener page.

EXTRA: In re DMCA Subpoena To Reddit, Inc., 2026 WL 1847873 (N.D. Cal. June 26, 2026). In March 2025, a Reddit user with the username u/tiktoktruthseeker posted to the r/FavoritedRanksDrama subreddit a 27-second clip from one of Shafiei’s TikTok livestreams, accompanied by a paragraph of critical commentary. The clip depicts Shafiei speaking directly to the camera, using language such as “Your mom was a bitch” and “When you were in school you got fucked in the ass.” The post, titled “PBA: Weaponizing SA, Homophobia, and Moms for his Angry Rant,” received 42 upvotes.

Shafiei sent Reddit a takedown notice and got a 512(h) unmasking subpoena. Reddit dishonored the takedown notice, taking the position that the post was fair use, and resisted the 512(h) subpoena. Thank you, Reddit, for standing up for your users!

The court agrees with Reddit’s fair use determination:

• “Even though the Reddit user included an unaltered clip from Shafiei’s livestream, what matters is that the poster used it to express criticism of Shafiei’s rhetoric. As such, the Reddit user’s posting of the clip is a transformative fair use rather than infringement….where the post is best understood in the context of the video clip it directly criticizes, such use is justified.”
• “even if the post includes personal attacks, disparagement, no matter how rude, may still be transformative.” [See my Memory Hole paper for more on the overlaps between copyright and disparagement.]
• “the livestreamed video is primarily factual in that it is an informational presentation of Shafiei’s opinions.”
• “the use of a 27-second clip from someone who livestreams up to 16 hours per day is quantitatively insignificant.”
• “The Reddit user’s commentary within the post directly references statements made by Shafiei in the 27-second clip. Omitting this clip and instead referencing Shafiei’s livestream or providing a link to Shafiei’s account would be insufficient because it would not provide the full context for the user’s commentary.”
• “Shafiei’s arguments that the post’s criticism may suppress demand by making TikTok users aware of his behavior is not a cognizable copyright harm.”
• “It is also not clear that reproduction of a 27-second clip from a livestream has any value outside of the livestreamed context. The clip does not serve as a substitute for Shafiei’s daily presence on the platform for up to 16 hours at a time.”

Some Other Blog Posts on 512(h)

• Court Authorizes Unmasking Subpoena in Copyright Case–In re DMCA Subpoena to GoDaddy
• Internet Access Providers Aren’t Bound by DMCA Unmasking Subpoenas–In re Cox
• Court Quashes 512(h) Subpoena on First Amendment Grounds–In re 512(h) Subpoena to Twitter
• Court Quashes 512(h) Subpoena Submitted to YouTube–Watch Tower v. Kevin McFree
• Twitter Can’t Quash a 512(h) Subpoena
• Court Orders Unmasking Subpoena of Alleged Infringers–Baugher v. GoDaddy
• 2H 2019 and Q1 2020 Quick Links, Part 1 (Copyright, E-Commerce, Advertising)
• 512(h) Doesn’t Preempt Doe Unmasking Lawsuits–Strike 3 v. Doe
• eBay Must Disclose User Identities In Response To 512(h) Subpoenas
• Q2 2015 Quick Links, Part 1 (IP, Marketing and More)
• An Unmasking Effort Gets Gutted Some More – Art of Living Foundation v. Does
• Copyright Doe Defendant Can’t Quash Disclosure Subpoena Anonymously—Hard Drive Productions v. Does (Guest Blog Post)
• Spiritual Group’s Attempt to Unmask Online Critics Goes South–Art of Living Foundation v. Does
• Did a Court Eliminate 512(h) Subpoenas?–Maximized Living v. Google
• Co-Blogger Identity Isn’t Disclosed via 512(h), but Takedown Letters Are Copyrightable

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Snarky note about design patents: This is a design patent case. I don’t mean any disrespect towards design patent aficionados, but design patent cases typically feel like Calvinball to me. This one does too.

* * *

Shenzhen Jisu has a design patent (D886,982) for a foldable fan:

Shenzhen Jisu asserted the design patent against many online merchants in a SAD Scheme case. As usual, it got an ex parte TRO and then sought a preliminary injunction. Several defendants appeared to contest the PI, but the court granted the PI anyway.

In the interim, the USPTO issued a new design patent (D1,046,104) to a third party that cites D886,982 as prior art. The ‘104 issuance indicates that the USPTO thought that the designs were sufficiently distinguishable to authorize the patent. I’m no expert on foldable fans, but the major difference appears to be that Shenzhen Jisu’s design rotates the cover vertically and the subsequent patent rotates the cover horizontally. I defer to the design patent experts why either should be protected via design patents at all, especially when every aspect of the design seems pretty functional to me. For now, just go with it.

The defendants sought reconsideration from the district court judge based on the ‘104 patent, arguing (1) the defendants’ designs overlapped with the ‘104 design (essentially admitting infringement of that patent, but it seems like there was a license between the defendants and the ‘104 design patentee?), (2) the USPTO said that the ‘104 design was sufficiently distinguishable from the ‘982 design to permit the new design patent, so (3) based on those USPTO-recognized differences, the judge should conclude that the design differences do not support the PI. Despite that pretty good argument, the district court initially rejected the reconsideration.

Perhaps feeling emboldened, Shenzhen Jisu added more defendants to the case, including the ‘104 patentee. The new defendants’ appearances finally persuaded the district court judge to credit the USPTO’s distinction between the designs. The judge denied a TRO against the new defendants and dissolved the existing PI. Shenzhen Jisu appealed, but the Federal Circuit upheld the PI denial.

The opinion has some inside-baseball discussions about the standards for design patent infringement, especially the doctrine of “anticipation.” T0 summarize: there is a difference between the USPTO’s standards for patentability and the court’s evaluation of infringement. However, the USPTO’s decision to issue the ‘104 patent, knowing about the existing ‘982 patent, makes it practically difficult (impossible?) for the ‘982 patentee to successfully argue that the ‘104 design infringes.

In dissent, Judge Stoll says that design patent infringement cases require the district court judge to do a three-way comparison of the patent, the new product, and the prior art, which the judge didn’t do. Judge Stoll would send it back to the judge to do that comparison. Judge Stoll writes:

Use of the proper legal framework cannot be sacrificed for the purposes of judicial efficiency

Judge Stoll was referring to the district court’s handling of the design patent infringement analysis, but Judge Stoll’s words pretty much encapsulate the SAD Scheme’s problems.

Two aspects of this case worth reinforcing:

1) The district court got the law wrong at the TRO stage. The TRO never should have issued in the first place. Erroneously issued ex parte TROs are not some unexpected whoops. They are inevitable in ex parte proceedings, which makes them a ubiquitous–and pernicious–part of SAD Scheme practice.

2) By combining a design patent with the SAD Scheme, Shenzhen Jisu caused substantial chaos in the marketplace. As I see it, the TRO improperly knocked non-infringing competitors out of the market, depriving consumers of the full range of legitimate choices and almost certainly raising prices to consumers. Those consumers had no voice in the litigation, so they depend entirely on judges to protect their interests, which the district court didn’t adequately do. Worse, there is almost always zero accountability for these inevitable and oh-so-common consumer harms or SAD Scheme plaintiff’s abuses. To me, that is indeed SAD. #StopTheSADScheme.

Case Citation: Shenzhen Jisu Technology Co., Ltd. v. Annex A Defendants, No. 25-1617 (Fed. Cir. July 22, 2026)

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Apple’s manuevers confused the public and seemed like an embarrassing unforced error for Apple. It also ensured pressure from governments and plaintiffs, including CSAM victims, who preferred Apple’s more interventionist approaches, which Apple had voluntarily demonstrated it was willing to do.

This lawsuit represents a full-scale attack on Apple and Section 230. “Plaintiffs allege that Apple’s failure to implement any known CSAM detection is a design defect because Apple can safely implement readily available features to prevent the spread of known CSAM but has continuously failed to do so.” Prior blog post. The court dismisses the third amended complaint, which tees this case up for the Ninth Circuit, where (as usual) anything could happen.

* * *

The court reiterates that Section 230 applies to the plaintiffs’ claims:

First, Plaintiffs’ claims treat Apple as a publisher or speaker of the CSAM content that animates Plaintiffs’ injuries. Fundamentally, Plaintiffs contend that Apple has elected to permit users to disseminate and share third-party CSAM content when it could have—and, in their view, should have—used readily available technology to prevent the distribution of child pornography depicting the Plaintiffs in this putative class. The duties Plaintiffs seek to invoke “spring[ ] from the defendant’s status as publisher,” and consequently, “immunity applies.” Second, immunity also applies because “the means to avoid liability requires [Apple] to act as a publisher.” As a result, Apple is entitled to complete immunity under § 230.

Citing Doe 1 v. Meta, the court says:

Plaintiffs’ injuries are the direct result of the actions of third parties who used iCloud to share CSAM, a use Apple neither explicitly condones nor prevents (even assuming—as alleged in the TAC—that Apple was aware of the use of iCloud for this purpose)….though Plaintiffs allege that Apple knew that its tools were likely to be used to distribute child pornography (as confirmed by the internal Apple text messages at the center of this case), under the current state of the law, Apple is still entitled to immunity under § 230—irrespective of that general knowledge….

Plaintiffs cannot avoid the fact that a tool that detects CSAM must review CSAM to make such a determination. And while Apple could have taken steps to do so—as its competitors have done by using PhotoDNA—Grindr confirms that § 230 bars claims arising from the design decisions Apple could have taken where those claims relate to Apple’s role facilitating the communication and content of others

(A reminder that the defendant’s scienter is irrelevant to Section 230).

The plaintiffs tried to fit into the new Section 230 exceptions created in Doe v. Twitter, but the court rebuffs the move:

This case does not concern or even discuss Apple’s content reporting systems; it concerns Apple’s “failure to implement industry-standard safeguards” against the dissemination of CSAM. Though reporting systems and CSAM safeguards may both be described as “defects,” the latter requires the Court to treat Apple as a publisher. Twitter “could fulfill its purported duty to cure reporting infrastructure deficiencies without monitoring, removing, or in any way engaging with third-party content”; Apple cannot fulfill a duty to institute CSAM safeguards without deploying a tool like NeuralHash or PhotoDNA. Both NeuralHash and PhotoDNA were built to monitor and report violative images uploaded to company servers. Yet just the decision regarding whether to deploy either tool is a choice related to content moderation.

Also, Apple didn’t fail to satisfy any duty to report items to NCMEC if it never identified CSAM in the first place.

The Lemmon v. Snap workaround fails: “all of Plaintiffs’ claims here are inexorably linked to third-party content; Plaintiffs do not allege that Apple created content like a Snapchat filter that caused them harm.” The Roommates.com workaround also fails: “Plaintiffs do not allege that Apple modified or augmented the CSAM on its servers in any way.”

* * *

The case reaches its inevitable denouement of a win for Apple. However, Judge Wise remains troubled about its implications. She expresses her uneasiness in stronger-than-normal terms:

As it stands, nothing in the law prevents any company, including Apple, from utilizing available technology or creating new technology to identify and report child pornography stored and distributed on their traditional servers or through their cloud services. Conversely, there is no law that obligates companies to proactively do so. Undoubtedly any such legislation would come at a cost of at least some loss of privacy for millions of people. But if lawmakers expected that companies would take steps to prevent their products from being used for storing and distributing child pornography based on something short of a legal imperative, this case, like many others before it, demonstrates the inadequacy of that approach. If lawmakers want to ensure that Apple and other companies address their role in the dissemination of CSAM, they must require it under the law. In other words, lawmakers can fix this problem that is contributing to the exploitation of children.

She goes through this framing pretty quickly, but we should slow it down. The “loss of privacy for millions of people” she briefly references deserves a little more care. The opinion downplays the encryption angle; it mentions encryption only twice, as if it’s an afterthought. However, encryption is the critical attribute underlying Apple’s moves. Apple was seeking to respect that what’s on people’s hard drives should remain their business, even if they choose to store some of it in the cloud. Forcing Apple to scan private files intended for iCloud storage creates a new and dangerous threat vector for bad actors, including governments seeking to control constituent behavior.

So yes, the “privacy loss” Judge Wise mentions indeed would be a major cost to everyone. Respecting the privacy of people’s files isn’t just some nice-to-have feature; it is one of the core planks of a technology architecture that keeps people safer.

Judge Wise continues:

This Order does not turn on whether Apple’s decisions contributed to Plaintiffs’ injuries. All Plaintiffs’ claims are founded on Apple serving as a publisher of third-party content. It is that role as “publisher” that is dispositive on the issue of immunity. This does not mean that the existence of images and videos of the putative class members being sexually abused—content that they allege is regularly stored and disseminated on iCloud—has not caused Plaintiffs real and lasting harm…

the outcome also adds credence to claims that the Ninth Circuit “has expanded § 230(c)’s scope to provide functional immunity to internet companies, even when they are aware (or should be aware) of unlawful content on their websites.” The practical outcome is that the current state of the law prioritizes privacy—a laudable and critically important value given that in our modern world nearly all our most personal and intimate data (including financial and health records) are stored and transmitted online. But the law should not ignore how those who create, view, and distribute child pornography leverage privacy protections to avoid detection by law enforcement. In the current legal framework, there is no protection for members of the putative class—individuals who as children were photographed and filmed while being abused in the vilest ways imaginable, and who now are repeatedly victimized each time the intimate and tortured images of their trauma are distributed to others. Those children are the collateral damage of our ineffective legal landscape. They deserve better.

Judge Wise isn’t well-situated to compare the relative strengths and limitations of the full range of potential anti-CSAM options, but a leading tool has always been and remains the government’s efforts to find and prosecute the creators, disseminators, and downloaders of CSAM. (Do you recall the federal government’s choices that leave children more vulnerable?) Making sure the government is doing what it can should be the #1 priority.

Case Citation: Amy v. Apple Inc., 2026 WL 2031817 (N.D. Cal. July 13, 2026). The complaint.

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This account has repeatedly posted false information that was reviewed by independent fact checkers or went against our Community Guidelines. Do you want to @mention this account?

There was a more prominent “cancel” button than the option to proceed, implicitly nudging users to cancel. F4F claims that none of its posts were false and Instagram didn’t rely on fact-checkers before displaying the interstitial warning.

The filings don’t appear to show the interstitial warning (why not?), but I found this example online:

F4F filed in Virginia state court. Instagram removed to federal court and then sought to transfer venue to California per its TOS. The federal district judge agrees.

F4F argued that Instagram’s TOS formation process was a browsewrap. I couldn’t find screenshots in the filings (why not?), but the court credits[FN] Instagram’s declaration that the signup process said “by tapping ‘Sign Up’ you agree to our Terms, Data Policy, and Cookies Policy.” The court says this is a “hybrid clickwrap,” not a “browsewrap.” I say it’s neither; it’s a standard sign-in-wrap, and we don’t have enough information to know if it’s properly formed without seeing screenshots.

[FN: The court says it credits Instagram’s declaration on a motion to transfer “given the declarant’s personal knowledge of the information described therein and given that Feds for Freedom’s allegations are consistent with the declaration.”]

F4F said it didn’t read the terms. (Indeed, literacy appears to be a major challenge in the anti-vax community). Quoting Dhruva, the court replies that “when a website provides clear and reasonably conspicuous notice that there are contract terms available by scrolling down or clicking a hyperlink, the user is on reasonable notice of those terms even if she never reads them.” As a result, F4F bears the consequences of its decision not to read the TOS. That’s enough to ship the case to California.

The court’s TOS formation ruling isn’t surprising, but the real action in this case will start when the court considers the legal implications of the interstitial warning. I have raised concerns before about the legal risks of fact-checking and other explanations. Unsurprisingly, the affected accounts really don’t appreciate being called out.

Case Citation: Feds for Freedom v. Meta Platforms, Inc. 2026 WL 2058962 (W.D. Va. July 16, 2026)

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Contributory Infringement

Inducement to Infringe. The court says it’s not inducement when “Plaintiff merely alleges that Defendant knowingly allowed listings of infringing TJ Karaoke devices to remain active on its website despite having the ability to remove the listings….Nor has Plaintiff alleged facts giving rise to an inference that the ‘principal object’ of Defendant’s online marketplace is the sale of infringing products. [cite to Grokster]”

Tailored to Infringement. The plaintiff did not allege that “Defendant’s service is incapable of substantial or commercially significant noninfringing uses….allegations that a service provider merely had ‘knowledge that a service will be used to infringe’ or ‘fail[ed] to take affirmative steps to prevent infringement’ are insufficient to state a claim for contributory infringement liability.” Given eBay’s scope, I don’t see how a plaintiff could allege that eBay is “incapable of substantial or commercially significant noninfringing uses.”

Vicarious Infringement

Citing Milo & Gabby, the court says the “mere fact that Defendant had the ability to remove listings of infringing devices is not enough to establish that Defendant had both the legal right and the practical ability to stop the third-party sellers’ infringing conduct.” The court doesn’t discuss the direct financial interest prong, which poses a heightened challenge to eBay due to its commission structure.

Did Cox Make a Difference?

The Supreme Court’s Cox v. Sony decision didn’t address vicarious copyright infringement, so that part of the ruling wasn’t affected by the Cox case.

This court did apply the revised Cox standards for contributory copyright infringement, and the application of those factors makes this an even easier case. Lee made knowledge-based allegations, but–as the Cox court seemingly intended–Lee could not spin those allegations to satisfy an intent-based standard. It makes quick work for a defendant like eBay who has taken many steps to reduce copyright infringement.

(It remains to be seen if courts will (1) bend the standards in Cox to distill evidence of intent from knowledge-based allegations, or (2) bend the standards of direct or vicarious infringement to gapfill the narrowed contributory infringement standard. Fortunately, this court did neither. However, it was also a pro se case, not a full-scale assault to degrade the Cox standards that rightsowners will launch eventually).

However, I don’t think Lee’s claims would have gotten far with the pre-Cox jurisprudence either. Courts have routinely rejected staydown demands from plaintiffs. Also, eBay’s honoring of the NOCIs means that it would have likely qualified for the 512(c) safe harbor too. Still, those defenses might not have worked until summary judgment, at significant defense costs, while the Cox precedent easily and decisively ends this case on a motion to dismiss.

Case Citation: Lee v. SBS Corp., 2:26-cv-03144-MCS-E (C.D. Cal. July 9, 2026)

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