• Shangyou Jiayi Lighting Product Co., Ltd. v. Schedule A Defendants, 2026 WL 2948520 (E.D. Tex. Sept. 30, 2026) and
• Haiying Liu  v. Schedule A Defendants, 2026 WL 2948569 (E.D. Tex. Sept. 30, 2026)

As per the new norm, these cases appear to be Chinese companies suing their Chinese competitors in US court. Another example of how rapidly the Chinese learn from U.S. (judicial) “innovations.”

Judge Barker issued two very similar opinions. Neither went well for the plaintiffs. Many of his points fundamentally reject standard SAD Scheme arguments that are prevalent in many other cases.

Given their extensive overlap, I’ll cover the Shangyou Jiayi Lighting case first and then discuss some differences in the Liu opinion.

Shangyou Jiayi Lighting

Judge Barker starts with an obvious yet often undervalued point: “Schedule A cases can have an uncertain fit with the Federal Rules of Civil Procedure and due process.” I would have gone further and said the cases categorically don’t comply with FRCP or due process, but at least this shows he understands the gaming risk.

Email Service of Process

“Two circuits have now held that the Hague Convention, when it applies, prohibits service by email on defendants in China. The court agrees with that analysis….The court agrees with the Second Circuit’s recent conclusion that, where the Hague Convention governs service of process on a defendant in China, it prohibits service by email. ”

The plaintiff weakly argued that it was hard to find the defendants’ physical addresses. That did not go well:

Plaintiff argues that defendants primarily use electronic communications to operate their businesses and communicate with customers and third-party sales platforms. That answers the wrong question. Conducting business online and communicating mainly by email bear on whether email is reasonably calculated to give notice under Rule 4(f)(2) or (3) and the Due Process Clause…It says nothing about whether any defendant’s physical address is known. And only that question controls whether the Convention applies here.

A defendant may do business entirely by email and still have a physical address that is known or discoverable with diligence….

Diligent efforts to find a defendant’s address include more than just stating the difficulty of the endeavor….

Plaintiff has put forth no evidence that it could not find defendants’ Chinese addresses despite diligence. So plaintiff has not established this exception to the Hague Convention’s application.

Personal Jurisdiction

“Even the approaches most favorable to Schedule A plaintiffs rely on a completed sale of an accused product into the forum. As explained below, the record here shows no such sales by any defendants.”

The plaintiff’s items of evidence “are screenshots of Amazon checkout pages listing an address in Plano, Texas, which is within this district, but no completed purchases. Pages showing that a product could be shipped to the forum do not establish a sale into it.”

Asset Freeze

As usual, the plaintiff sought to freeze of the defendants’ money held in third-party accounts and obligate third-party services to freeze the money. The plaintiff backed off the freeze order on the third-party services, but the court also highlights a jurisdictional problem: “To the extent the proposed order would have been binding on the platforms directly, apart from any relationship to defendants, it would still have adjudicated defendants’ interests in their own property without jurisdiction over them.”

Unmasking Subpoenas

Judge Barker rejects a general discovery order to third-party services. However, “If plaintiff believes that a platform’s records would show sales of accused products shipped to Texas, it may move for leave to serve targeted subpoenas for that limited purpose.”

Joinder

“Schedule A cases often join dozens or hundreds of unrelated online sellers in a single action based on little more than their alleged infringement of the same intellectual property. Courts have increasingly rejected that practice.”

Here, the plaintiff narrowed the defendant list to the point where the judge accepts joinder:

The concern that can arise with Schedule A joinder in other cases is not present here because plaintiff does not sweep together unrelated sellers. It sues sales channels allegedly operating together under one operation. Plaintiff supports the connection among the defendants with allegations beyond the alleged infringement itself: use of the same or similar advertising look and feel, product images and descriptions, and tactics to evade enforcement efforts. On plaintiff’s theory, its claims against each defendant arise from the sale of the same accused products by the same operation and will present common questions of fact. That satisfies § 299(a) at this stage.

I don’t know about this. SAD Scheme plaintiffs routinely claim that the defendants all use the “same or similar advertising look and feel, product images and descriptions, and tactics to evade enforcement efforts.” To me, this looks like a standard plaintiff boilerplate roboargument.

Sealing of Filings

Temporary sealing can serve a legitimate purpose in an ex parte proceeding. It can prevent a defendant from defeating relief before the court can act. But that justification lasts only as long as the application for ex parte relief is pending, and it ends once the court has ruled. The court has now denied the temporary restraining order and asset restraint. Now that the court has ruled, the public’s interest in access extends to the ruling itself and to the record on which it rests. And no document sought to be sealed is claimed to contain confidential business information or personal information warranting protection.

Continued sealing would also undermine protections for defendants in the federal rules. A plaintiff may voluntarily dismiss an action without a court order before defendants answer. But the federal rules protect defendants against repeated litigation of the same claim: A second voluntary dismissal of the same claim operates as an adjudication on the merits. And a court in which the claim is refiled may award the costs of the prior action and stay proceedings until they are paid.

Those protections, and the related-case disclosures that courts require when a case is filed, depend on the prior action being discoverable. If this record remained sealed and the case were dismissed by plaintiff, neither defendants nor another court could readily learn that the claims had been asserted or that relief had been sought and denied. That concern is not hypothetical in Schedule A litigation.

It’s great that Judge Barker recognizes the risks of plaintiffs dragging defendants through multiple lawsuits until the plaintiffs get the positioning they want. Docket transparency is a partial cure, but more is needed too.

Notice to Defendants of the TRO Request

The plaintiff didn’t notify the defendants of the TRO request and didn’t adequately explain why not:

The reasons offered for proceeding without notice are generic. Plaintiff says only that defendants “can and likely will take immediate steps to permanently alter the status quo, including but not limited to steps such as registering new e-commerce stores under new aliases and moving any assets to offshore bank accounts outside the jurisdiction of this Court.” Nothing in the record describes anything these defendants have done to suggest they would dissipate assets or evade an order.

Judge Barker blows up the standard SAD Scheme plaintiff expectation that it’s obvious every Chinese defendant will go rogue. That claim requires more facts than just rote recitation.

Likelihood of Success on the Merits

Judge Barker notes the problems with testing the claim’s legitimacy in an ex parte proceeding:

Ordinarily, an accused infringer can defeat preliminary relief by raising a “substantial question” of infringement or validity. But, here, no defendant is present to do so. That makes it all the more important that the court at least attempt to test plaintiff’s showing on its own terms—and make its assessment of likelihood of success with eyes wide open to the limitations of a one-sided presentation.

This is true with utility patent claims and even more true for design patent claims. Our adversarial system depends on defendants calling attention to the weak points of the plaintiffs’ claims. Judges are not well-positioned to intuit what defendants might hypothetically say if they were around.

With respect to claim 1 of the patent:

The claim chart features only a single unidentified product, which plaintiff alleges—with no declaration, affidavit, or legal analysis—is “representative of all of the Infringing Products identified in Schedule A”. The photographs of the unidentified product contain a few labels purporting to identify only a lamp, with its conducting-wires, light-emitting components, conductor and insulating layers, plurality of openings, and conduct-or-contact surfaces. This is facially insufficient to establish a likelihood of success on the merits where the limitations of Claim 1 are far more substantial than the limited number of identified details in each photo. In fact, plaintiff’s showing is scarcely more than the screenshot-only presentations that have drawn criticism in other Schedule A cases….

the court cannot comprehend how a chart exemplifying a mere “perfunctory submission” can be said to show a likelihood of success on the merits.

The chart refers to “Defendant #10 Infringing Product” in the singular, and it does not say which listing the photographed product came from or how plaintiff examined it. But plaintiff accuses 14 separate products of infringement. Nothing in the record shows that each accused product contains the structure depicted in the chart, except for plaintiff’s assertion that they are “identical … in all aspects relevant to the [patent] claims.”…

“[S]imply mimicking the language of the claims when identifying infringement” fails to establish even reasonable notice of plaintiff’s theories of infringement, and it is certainly insufficient to find a likelihood of success on the merits….

The product identifiers listed in the motion cover some 14 listings. Plaintiff has not shown a likelihood of infringement as to any of them.

Asset Freeze Redux

“because a utility patent plaintiff’s monetary remedy is legal damages, a federal court lacks authority to freeze a defendant’s assets to preserve that remedy.” [cite to Grupo Mexicano de Desarrollo]

Judge Barker also explains how an asset freeze would reach assets unrelated to the alleged infringement:

an asset freeze preserves only assets that may be needed to satisfy that equitable relief. But the proposed order would bar defendants from transferring “any money held by a Third Party Provider,” without regard to location, amount, or source. Plaintiff now concedes that defendants may continue selling non-accused products. Yet the proposed order on file would reach the proceeds of those very sales. And it would freeze all funds associated with defendants’ storefronts and with any other accounts later identified….

The requested freeze would thus restrain defendants’ entire business to secure a claim for damages that plaintiff has not attempted to quantify.

Overfreezes are ubiquitous with the SAD Scheme. The plaintiffs usually cannot model how much money is atttributable the defendant’s infringing conduct (if any) at the ex parte TRO stage (pre-discovery). Thus, the TRO routinely freeze all of the defendant’s assets, including proceeds of non-infringing conduct. That is categorically a due process violation.

Echoing the Eicher Motors case, Judge Barker flags the harms that an asset freeze can cause (emphasis added):

The requested freeze would do more than preserve the status quo. Defendants would first learn of this suit when their accounts were frozen. The freeze would reach “any money held by a Third Party Provider,” including the proceeds of products that plaintiff concedes defendants may keep selling. Such a freeze “locks down defendants’ assets” and can cause “severe or fatal cashflow problems for the defendant, which may not be able to pay its vendors, employees, or lawyers.”…

Without defendants’ participation, moreover, the court has no reliable way to weigh the harm that the freeze would cause them or plaintiff’s likelihood of success in overcoming any invalidity or non infringement defense. An asset restraint that impairs a defendant’s ability to answer the claims against it is not a measure that preserves the status quo pending a hearing. It is a measure that may prevent a hearing from ever occurring.

This is such an obvious point, and yet judges often elide it. Ex parte TROs are supposed to temporarily preserve the status quo, but SAD Scheme ex parte TROs routinely disrupt the status quo and change the parties’ substantive rights. That is another part of their due process problems.

Bond

The court doesn’t grant the equitable relief, so no bond was required. Nevertheless, Judge Barker pushes back on the plaintiff’s request:

The proposed order would freeze “any money held by a Third Party Provider” of 14 defendants. It would bar sales of some 14 product listings. The court is not satisfied that a mere $10,000 injunction bond would properly compensate defendants in the event that the requested TRO, if entered, turns out to have been legally or factually improper.

In my SAD Scheme Standing Orders paper, I note that judges don’t have any rigorous methodology for setting bond amounts. This is especially a problem in ex parte proceedings, where the judge has no indication of how the ex parte TRO will impact defendants.

Implications

Reading this opinion, this meme kept coming to mind:

In my ideal world, Judge Barker would have rejected the entire premise of the SAD Scheme cases, rather than poking holes in multiple individual pieces. Even so, this opinion calls out many problems with standard SAD Scheme lawsuits. Many of those problems are essentially manifestations of an overdeveloped sense of entitlement, i.e., “I’m an IP owner, so I deserve everything I ask for without question.” Fortunately, Judge Barker doesn’t rubberstamp those requests.

Liu Case

The Liu decision has a lot of overlapping language with the Shangyou Jiayi Lighting decision, so I will just highlight some of the new incremental points of interest.

Personal Jurisdiction

The only evidence the motion offers for those assertions is one sentence in plaintiff’s declaration, stating that defendants “collectively advertise, distribute, and sell the accused product into the United States, including Texas.”

That sentence identifies no sale, buyer, shipment, or date in Texas. It attributes the conduct to defendants collectively rather than to any one of them. And it has no stated basis. Plaintiff resides in Shaanxi Province, and the declaration refers only to “my investigation,” without saying what that investigation involved….

Exhibit 1 is a Facebook page for “Tiny Land Inc” that lists Shanghai Tailan as the entity responsible for the page. Exhibit 2 consists of photographs of a product box. Exhibit 3 is a Chinese corporate-records printout for Shanghai Tailan. None of these materials mentions a sale, a shipment, or a customer in Texas….

For the tinylandus.com website and the Wayfair store-front, plaintiff’s exhibits include only checkout pages listing Sherman, Texas, shipping addresses, with no completed purchase. For the Walmart storefront, the exhibits show only items placed in a shopping cart. Pages showing that a product could be shipped to the forum do not establish a sale into it.

Though the plaintiff didn’t highlight it, there was one sale delivered to a Texas address. The court says that evidence might provide enough support for jurisdiction for that sale.

Joinder. “Plaintiff supports the connection among the defendants with evidence beyond the alleged infringement itself: the Facebook page, the product packaging, and the shared email domain.” I’ve seen weaker evidence in support of joinder, but this could also be a roboargument.

Notice before the ex parte request. As further evidence that the plaintiff didn’t have any reason to assume asset dissipation on notice, the court says “The business operator that plaintiff identifies is, per plaintiff’s own evidence, a registered company with a known address that has operated under the same name for years.”

Likelihood of success on the merits.

With respect to claims 1 and 8:

Plaintiff argues that the accused products “practice each and every limitation of at least independent claims 1, 8 and 9” of the asserted patent. But plaintiff’s claim chart addresses only claim 9. The chart expressly states that plaintiff “reserves the right” to assert claims 1 and 8 later, “based on further investigation and discovery.”

I’m pretty sure that’s not how pleading burdens in patent cases are supposed to work, but in SAD Scheme cases, plaintiffs often get away with a lot.

With respect to claim 9:

Plaintiff’s chart maps each limitation of claim 9 to photographs of a physical product. The photographs include labeled images of what plaintiff identifies as the annular and protective sleeving pipes, and images with a measuring tape comparing framering diameters before and after folding. That is a more substantial showing than the screenshot-only presentations that have drawn criticism in other Schedule A cases.

It’s amazing how much judges appreciate the plaintiffs taking small but seemingly obvious information steps like labeling photos, given how often SAD Scheme plaintiffs cut procedural corners and impose significant workloads on the judge’s staff. It’s still not enough in this case:

First, it concerns a single, unidentified product. The chart refers to “Defendants’ Accused Product” in the singular, and neither the chart nor plaintiff’s declaration says which listing the photographed product came from, who obtained or examined it, or how. Plaintiff accuses 20 listings across four sales channels, identified by seven Amazon ASINs, three Walmart product IDs, three Wayfair product IDs, and seven website product IDs. These include a standalone 69-inch crawl tunnel and multipiece sets combining tents, ball pits, and tunnels of different sizes. Nothing in the record shows that each accused product contains the structure depicted in the chart.

Second, several of the chart’s key entries restate the claim language without explaining how the photographed structure meets it….

Third, plaintiff’s validity showing consists entirely of the statutory presumption. That presumption does carry weight at this stage. But on an ex parte record, the court has no way to assess prior art or other alidity challenges a defendant might raise.

This looks like another IP Privilege card. “I have a patent, so I win.”

Judge Barker summarizes the discussion:

At most, therefore, plaintiff has made a preliminary showing that the single product photographed in its claim chart likely meets the limitations of claim 9 and no patent-specific showing as to its likely validity. It has made no showing as to claims 1 and 8 and no showing as to any other accused product.

Bonus: The Smiley Company SPRL v. Schedule A Defendants, 1:25-cv-26045-RS (S.D. Fla. Sept. 23, 2026).

A Smiley case is likely going to fall apart due to misjoinder:

counsel for Plaintiff informed the Court that Defendants are likely located in the same region, China, and are operating in the same manner by selling infringing products online. Counsel for Plaintiff did not set forth any specific allegations explaining how the 50 remaining Defendants were connected to one another.

Simply alleging that Defendants have violated Plaintiff’s trademark in the same way is insufficient.

Great. At the same time, 32 defendants in that case have already been dismissed, likely because they settled a case that apparently violated joinder rules from day 1. Will the court take a look at the (il)legitimacy of those dismissals and any resulting settlements? Or did the plaintiff already reap the economic spoils from those 32 defendants based on an ex parte TRO that never should have issued?

Prior Blog Posts on the SAD Scheme

• Court Wipes Out SAD Scheme Default Judgment Due to Improper Email Service–Deckers v. Litfun
• SAD Scheme Plaintiff Must Pay $40k to Defendant–Guangzhou Tinpod v. Schedule A Defendants
• New York Judge Shuts Down a SAD Scheme TRO Request–CJB Global v. Schedule A Defendants
• Every SAD Scheme Opinion Is Weird In Its Own Way–Cai v. Chaozhoushi Yitong Dianzi Shangwu Youxiangongsi
• Federal Circuit Rebuffs SAD Scheme Plaintiff–Shenzhen Jisu v. Annex A Defendants
• Court Rebuffs Emojico’s SAD Scheme TRO Request
• Seventh Circuit Limits Email Service to Chinese SAD Scheme Defendants–Kangol v. Hangzhou Silk
• SAD Scheme Defendant Gets Damages Payout from the Bond–Bright Head v. Schedule A Defendants
• Judge Shopping & Schedule A (Guest Blog Post)
• SAD Scheme Plaintiff Gets Default Win But Blows the Layup on Damages–Shenzen Huajie v. Shenzen Leyibei
• SAD Scheme Copyright Plaintiff Must Compensate Defendants–Shenzhen Langmi v. Schedule A Defendants
• A “But They’re ‘Counterfeiters’!” Argument Doesn’t Clinch a SAD Scheme TRO–Emojico v. Schedule A Defendants
• New Article Alert: “SAD Scheme Standing Orders”
• Greer Burns Law Firm Sanctioned for “Willfully Abusive” and “Egregious” SAD Scheme Judge-Shopping
• Schedule A: Ten Notable Developments in 2025 (Guest Blog Post)
• Second Circuit Rejects Email Service on Chinese Defendants in Baby Shark SAD Scheme Case
• 11th Circuit Sidesteps the SAD Scheme’s Problems–Ain Jeem v. Schedule A
• Another Shill Article Tries to Normalize the SAD Scheme
• Court Sanctions Plaintiff’s Lawyer for Unverified Claims That the Defendant Was Hiding–Guangzhou Youlan Technology Co. Ltd. v. Onbrill World
• SAD Scheme Cases Are a Cesspool of IP Owner Overreaches–Nike v. Quanzhou Yiyi Shoe Industry
• District of New Jersey Adopts SAD Scheme Standing Order
• Court “Sanctions” SAD Scheme Judge Shopping—Crimpit v. Schedule A Defendants
• Chicago-Kent SAD Scheme Symposium TOMORROW
• Amicus Brief Urges Seventh Circuit to Award Attorneys’ Fees in SAD Scheme Case–Louis Poulsen v. Lightzey
• Court Rejects Schedule A Claims Against Sellers of Compatible Parts/Accessories (Cross-Post)
• Judge Kness: the SAD Scheme “Should No Longer Be Perpetuated in Its Present Form”–Eicher Motors v. Schedule A Defendants
• SAD Scheme Lawyers Sanctioned for Judge-Shopping–Dongguan Deego v. Schedule A
• Judge Ranjan Cracks Down on SAD Scheme Cases
• Because the SAD Scheme Disregards Due Process, Errors Inevitably Ensue–Modlily v. Funlingo
• SAD Scheme-Style Case Falls Apart When the Defendant Appears in Court—King Spider v. Pandabuy
• Serial Copyright Plaintiff Lacks Standing to Enforce Third-Party Copyrights–Viral DRM v 7News
• Another N.D. Ill. Judge Balks at SAD Scheme Joinder–Zaful v. Schedule A Defendants
• Judge Rejects SAD Scheme Joinder–Toyota v. Schedule A Defendants
• Another Judge Balks at SAD Scheme Joinder–Xie v. Annex A
• Will Judges Become More Skeptical of Joinder in SAD Scheme Cases?–Dongguan Juyuan v. Schedule A
• SAD Scheme Leads to Another Massively Disproportionate Asset Freeze–Powell v. Schedule A
• Misjoinder Dooms SAD Scheme Patent Case–Wang v. Schedule A Defendants
• Judge Hammers SEC for Lying to Get an Ex Parte TRO–SEC v. Digital Licensing
• Judge Reconsiders SAD Scheme Ruling Against Online Marketplaces–Squishmallows v. Alibaba
• N.D. Cal. Judge Pushes Back on Copyright SAD Scheme Cases–Viral DRM v. YouTube Schedule A Defendants
• A Judge Enumerates a SAD Scheme Plaintiff’s Multiple Abuses, But Still Won’t Award Sanctions–Jiangsu Huari Webbing Leather v. Schedule A Defendants
• Why Online Marketplaces Don’t Do More to Combat the SAD Scheme–Squishmallows v. Alibaba
• SAD Scheme Cases Are Always Troubling–Betty’s Best v. Schedule A Defendants 
• Judge Pushes Back on SAD Scheme Sealing Requests
• Roblox Sanctioned for SAD Scheme Abuse–Roblox v. Schedule A Defendants
• Now Available: the Published Version of My SAD Scheme Article
• In a SAD Scheme Case, Court Rejects Injunction Over “Emoji” Trademark
• Schedule A (SAD Scheme) Plaintiff Sanctioned for “Fraud on the Court”–Xped v. Respect the Look
• My Comments to the USPTO About the SAD Scheme and Anticounterfeiting/Antipiracy Efforts
• My New Article on Abusive “Schedule A” IP Lawsuits Will Likely Leave You Angry
• If the Word “Emoji” is a Protectable Trademark, What Happens Next?–Emoji GmbH v. Schedule A Defendants
• My Declaration Identifying Emoji Co. GmbH as a Possible Trademark Troll

The post Judge Barker (E.D. Tex.) Disassembles Two SAD Scheme Cases appeared first on Technology & Marketing Law Blog.

As we mentioned in our previous post, the Ninth Circuit’s intrinsic-extrinsic framework for substantial similarity has a number of problems. Those problems include confusing terminology, misuse of the terms “objective” and “subjective,” the lack of a clear goal for the infringement determination, and an unnecessary division of the substantial similarity inquiry, which creates havoc not only at trial but on appellate review. (For more, see our brief at 10-13, 24-31.)  It is a welcome development that the full Ninth Circuit is revisiting the question en banc this week.

In this post, we’re not going to dwell on what is wrong with the current framework. Instead, we’re going to explain what we think should replace it and why.

A test for copyright infringement has to make several discrete inquiries, many of which are uncontroversial. First, the plaintiff must first demonstrate that it is the owner of a valid copyright in a registered work. Second, the plaintiff must show that its copyright has been infringed in some way. So far, no one would disagree. For infringement through copying (as opposed to public performance or public display), even the Ninth Circuit now agrees (since Rentmeester v. Nike in 2018) that the plaintiff must prove both that the defendant actually copied material from the plaintiff’s work, and that the copying constituted wrongful appropriation.

It is the second sub-element of infringement–wrongful appropriation–where most of the confusion lies, and where we encourage the Ninth Circuit to focus the most attention in our amicus brief.

Created by DALL-E Sept. 2026

Any successful test for wrongful appropriation must at a minimum achieve three critical goals. First, unprotected material must be filtered out from the comparison, to prevent defendants from being held liable for taking material that copyright policy clearly states is common property. Second, in cases where a jury has been requested, the inquiries that form an infringement determination need to be appropriately divided between those that are primarily legal in nature, and thus can be decided by the judge, and those that are primarily factual in nature, which usually must be reserved for the jury. Finally, the purpose of the “wrongful appropriation” element must be made clear to judges and juries alike, both to enable them to apply it consistently and to prevent it from collapsing into a determination of actual copying.

In our brief, we recommend consolidating the extrinsic and intrinsic tests and dividing the wrongful appropriation inquiry in a different way. Wrongful appropriation should be separated into (1) an initial step focused on identifying the protected expression in the material plaintiff claims has been copied, and (2) a subsequent step of assessing whether the copied expression takes a substantial amount of the appeal of the plaintiff’s work to its ordinary audience.

The first step is one that in many cases will be mostly legal in nature, and one that is appropriately assigned to the court, preferably based on a plaintiff-generated list of the protectable expression that has been copied.

The second step is likely to be a task for the trier of fact, based not on the individualized view of the works personal to each juror, but rather on an assessment of the copied expression from the perspective of the ordinary audience. That assessment would focus only on copied expression, not unprotected material, and would be based on a comparison of both the discrete elements of each work as well as overall similarities or dissimilarities between the two–in other words, both the forest and the trees.

This revised framework has several advantages over the current Ninth Circuit test. One thing that many infringement tests lack, including the Ninth Circuit’s extrinsic-intrinsic framework, is a clear stage at which the copyrightable expression present in the material allegedly copied from the plaintiff’s work is identified and separated from unprotected (but similar) material, which is then used in the ultimate comparison of the two works. This is a critical part of any infringement determination, but one that is often folded into other stages of the inquiry, such as the extrinsic test in the Ninth Circuit. Given the minimal amount of creativity that copyright law requires to register a work, it is essential that at some point, difficult as it may be, the copyrightable expression and the unprotected material alleged to have been copied are distinguished from each other, in order to avoid conflating the two in either direction (over-protecting or under-protecting the plaintiff’s copyright).

That is why we recommend that any revised infringement test clearly identify a “filtration” stage as a distinct initial step of the wrongful appropriation inquiry. This sort of prior delineation of the scope of protection occurs in patent law (through claiming) and trademark law (which insists on identifying classes of protection in advance), but is lacking in copyright. Filtering for protected expression requires some familiarity with the Copyright Act–a statute never accused of being excessively accessible to lawyers, let alone to lay jurors–as well as comfort navigating the case law interpreting it. Judicially formulated limitations, such as the scènes à faire and merger doctrines, play a vital role in protecting the interests of authors, competitors, audiences and the public domain. Their contours, as applied, are often metaphysical and complex in ways that are unquestionably challenging for judge and jury alike.

In other words, we think that judges are usually going to be the better entity to filter for protected expression, for several reasons. Judges, if new to copyright, can more quickly be brought up to speed on copyright’s utilitarian purposes and the ways in which it does not always track lay expectations. Understanding the correct intended scope of protection is an important first step to applying filtering mechanisms accurately. Additionally, judges are more likely to have repeated experiences with determinations of copyright’s protected expression, especially in the copyright-heavy dockets, whereas most jurors are unlikely to serve on a jury more than once or twice in their lifetimes, let alone serve in a copyright trial more than once. Greater familiarity with copyright’s quirks and requirements makes it easier to filter effectively while still also protecting artistic expression robustly. Finally, judges’ determinations of protected expression as a matter of law can be reviewed de novo, which facilitates appellate review of the important legal question of the scope of plaintiff’s copyright.

We believe the filtering step, when performed by a judge, should be performed at a preliminary stage of the case (to allow for possible early resolution of the dispute) and, to minimize workload on the court, should be based on a list of the claimed protected elements in the plaintiff’s work that have been alleged to have been copied, a list the plaintiff should be required to produce.

There’s another issue addressed by our proposal, which has to do with distinguishing between the two parts of the inquiry to determine infringement, actual copying and wrongful appropriation. Frequently, these two steps are conflated in copyright cases. Many decisions seem to treat “substantial similarity”–the way wrongful appropriation is demonstrated–as a way of proving that the defendant actually copied something from the plaintiff. We recommend clarifying the distinction through both terminology and substance. With respect to terminology, the phrase often used for the second part of the infringement test––“substantial similarity”–is both unhelpful and potentially misleading. Similarity, as we say in the brief, is meaningless when considered by itself. Whether two objects are similar depends on what the goal of the comparison is. In the brief, we give the example of similar but not identical outfits–they may be too similar for evening wear, but not similar enough for a uniform.

We propose giving some shape to the substantial similarity inquiry by clarifying the goal. The purpose is not to determine similarity vel non, but to evaluate whether the defendant’s copying of protected expression was wrongful. We thus refer to the second part of the test not as “substantial similarity,” but as “wrongful appropriation”–although other phrases have been used (“unlawful appropriation,” “improper appropriation,” “illicit copying,” “actionable copying”), and those are consistent with our understanding. The point is that something other than simple copying of expression is being evaluated. Drawing on language from earlier cases, we connect the wrongfulness of the appropriation to whether it takes a substantial part of the appeal of the plaintiff’s work to the ordinary audience (e.g., ordinary observer, reasonable observer, or lay listener). In other words, the appropriation has to be significant enough to cause some harm to the plaintiff, whether that is monetary harm, harm to the plaintiff’s market share or potential audience, or some other cognizable injury.

Crucially, and worth repeating: injury has to be evaluated from an objective standpoint. The “ordinary observer,” like the reasonable person in tort law, is a legal fiction, an abstracted hypothetical entity meant to operate as a proxy. But a proxy for what? It is often unclear what it does and doesn’t do. The reasonable person standard symbolizes what an ordinary person ought to have done or known under similar circumstances, and thus helps define the boundaries of acceptable behavior versus unreasonable risk-taking or carelessness. That standard draws on ordinary experience common to the collective, rather than particularized to an individual decisionmaker. This distinction is why it is considered “objective” rather than “subjective.”

Similarly, the ordinary observer in copyright law helps locate the boundaries around certain behaviors through the adoption of a given perspective. From that vantage point, the trier of fact identifies when copying is unacceptable (“substantial appropriation”) and thus becomes legally cognizable as copyright infringement. Yet, adopting the ordinary observer perspective (or audience test) does not by itself yield the descriptively correct answer any better than any other test. As with the reasonable person standard, application of the ordinary observer standard inevitably integrates normative elements; there is no absolute “substantial similarity” that can be found, if we could only figure out the right decisionmaker. No matter what test is used, wrongful appropriation requires a normative determination, and the ordinary observer fiction is simply the framework through which to conduct that normative inquiry (a view captured in the Goldstein treatise and reflective of the modern trend since Arnstein v. Porter).

Often, the normative elements of the test are not fully acknowledged by courts, or they are wrongly characterized and even pilloried as undermining the jury’s ultimate conclusion. The problem is that there has been a pernicious slippage from objective to subjective conceptions of the ordinary observer, from ordinary observer as a fictional construct to ordinary observer as the jurors’ interior mental responses to the works. This slippage is a mistake; the second step of the substantial similarity determination should be treated as a device, like the reasonable person fiction–a device that formalizes the adoption of a lay perspective. The ordinary observer perspective is thus instrumental, a means to an end, and a means “peculiarly fitted” for a jury (to quote Arnstein v. Porter).

The problem with the slide from an objective to a subjective inquiry is that, in the Ninth Circuit, it would appear that jury verdicts on substantial similarity, precisely because they allegedly rest on jurors’ subjective views of the works, are treated as though they are a form of unshakeable truth accessible only to empaneled jurors and are thus inappropriate to consider on appeal. Now the ordinary observer test becomes something else altogether: not a helpful perspective to adopt, but the answer, and, what is more, a conclusion that cannot be revisited on appellate review. Put another way, courts are not merely expressing appropriate appellate deference in refusing to set aside or even review the jury’s view of the ultimate question of substantial similarity; they are giving voice to an unsupported, and ultimately untenable, view of epistemological supremacy. Under this view, the jury is a source of precious epistemic certainty, and its determinations must be presumed to be correct–and allowed to remain as they are.

Copyright’s ordinary observer standard resembles tort’s reasonable person standard, and it ought to be treated as an objective test, one that abstracts to a fictionalized entity in order to produce a normative conclusion about what is reasonable versus wrongful, whether the subject matter is a slippery sidewalk or a highly similar screenplay. As such, the ordinary observer standard, and the jury’s decision applying it, ought to be susceptible to sufficiency challenges like other jury decisions based on objective standards. Treating the jury’s conclusion as appellate Teflon represents a form of copyright exceptionalism and, as Prof. Sepehr Shahshahani argued in his amicus brief in Sedlik, a departure from longstanding rules and norms about the jury’s function. Whatever else it does in this case, the Ninth Circuit should ensure that copyright jury verdicts are treated no differently than jury verdicts in other areas of civil law.

The post Sedlik v. Von Drachenberg: The Right Way to Evaluate Wrongfulness (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

Odds are that the outcome will be terrible; and even if not, the reasoning will be 100% cringe.

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Embed/in bed

This opinion revisits the question of when embedding constitutes copyright infringement. This should have been an easy case. The Ninth Circuit has repeatedly and decisively concluded that embedding doesn’t constitute direct copyright infringement due to the “Server Test,” i.e., direct liability for a public display requires the alleged infringer to have a fixed “copy” of the work stored on a server in its possession or control. The Ninth Circuit reaffirmed the Server Test in a major 2023 ruling, Hunley v. Instagram.

In this lawsuit, the lower court relied on the Ninth Circuit’s Server Test to dismiss the claim. On appeal, the Fifth Circuit finds a way to undo everything in a dense, tendentious, tangent-filled, cringy, and poorly drafted decision. #BringTissues.

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Description of Embedding

The court describes how NewsBreak (by Particle Media) embeds third-party content, including content on Emmerich’s website:

From the NewsBreak newsfeed, users see a thumbnail image of an article and can click it to link to that article. Then, as the embedding webpage, NewsBreak creates an empty frame within its own page and fills the frame according to the instructions it receives from the link; that is, the link connects to the address of the server for the relevant article webpage and receives instructions from that server. The frame typically populates with the linked webpage in its entirety….from the NewsBreak App, users could see the live page of an Emmerich article on an Emmerich site

Rejecting the Server Test

After doing some statutory construction, the panel says “the statutory language in Section 106(5)—“to display the copyrighted work publicly”—translates to the following: To show a fixed work by transmitting it to the public.” The panel believes this rearticulation negates the Ninth Circuit’s approach:

we find the server test is on weak statutory footing. Put simply, the server test focuses on the definition of display—which requires showing a fixed work. The server test rests on the idea that a work is always fixed on a server. But we shift the focus to the definition of displaying a work publicly—which requires transmitting the work. Although rooted in different statutory text, this shift likely provides similar results as the server test in many ways….

both the server test and the test we announce end up in a similar place: a website cannot transmit a work that it does not have.

Why does the Fifth Circuit disagree with the Ninth Circuit? An in-line linker could theoretically create a fixed copy of the linked work:

even though embedded links show live content by way of interpreting HTML instructions from the content host, the embedder’s webpage is not necessarily so fleeting that it could not meet the definition of “fixed,” meaning embodied for more than a transitory duration. Using the Goldman case as an example: the news outlets embedded the copyrighted photo by linking to tweets that included the photo….the server test would falter, in our view, for a simple reason: it is possible for another third-party website to embed the photo by way of linking to one of the news outlets, thereby demonstrating that the news outlet’s showing of the work was sufficiently permanent or stable such that it would be considered fixed for purposes of the statute.

This made my head hurt. No one contests that the content delivered in response to an inline link is fixed. But who is doing the fixing? The user, the linking website, or the linked website? And does it matter? It seems like this panel is saying that the linking website did the fixing and that’s why it “showed” the copy to the user sufficient to jeopardize the Server Test. In contrast, I think either the user or the linked website fixed the copy that appears from the linked website, and that ought to reinforce the Server Test.

Despite this weird perspective on the responsibility for fixing works, the panel says that the linking website isn’t “transmitting” the content that was fixed (by someone). To support its thinking, the panel invokes an old-school offline analogy:

Think of Particle as a switchboard operator: In the same way a switchboard operator cannot connect a caller without the intended recipient picking up the phone and agreeing to be patched through, Particle cannot connect a user to Emmerich’s content without Emmerich’s transmittal of the content. Just as the critical act in having a telephone conversation is someone picking up the other end, we find that the critical act in the linking process is the transmittal of content, which requires courts to evaluate the party responsible for “communicat[ing]” the copy

If this opinion really wanted to capture the essence of Internet Law, the panel might have relied on analogies to telegraphs or pigeon carriers instead.

The telephone switchboard analogy leads the panel to this statement:

pointing or directing a user’s browser to request and receive the copyright owner’s own copy does not involve transmitting, or communicating, the content “beyond the place from which [it is] sent.” If the transmission must come from the content owner in order for a user to see any content at all, then no copyright liability exists for the linking site. If not, we must find where the transmission originates. Simply, one cannot transmit content it does not have.

My head hurts again. I don’t think its statement “one cannot transmit content it does not have” is precise, at least with respect to fixation. The 101 definition of “fixed” says (emphasis added): “A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.” In other words, the statute contemplates transmission of a work that someone else has fixed. The panel is appears to be saying that the linking website never touches the flow of packets being transmitted, but this is exactly what the Server Test already said.

(The panel also makes mind-numbing segues into the meaning of “volitional” conduct, how websites can opt-out of linking, and how copyright is an opt-in statute).

Although it sure sounds like the court articulated a bright-line test (“If the transmission must come from the content owner in order for a user to see any content at all, then no copyright liability exists for the linking site”), the court goes out of its way to say it is not: “our decision should not be understood to mean that embedding will always be permissible.” It mentions two limits:

Our analysis has rested on two principles: (1) the transmission of the copy is from an authorized source, whereas the embedding webpage only makes a transmission request; and (2) the authorized source could have rejected the request….we therefore do not pass on the application of this approach beyond these circumstances

Does #1 mean that if a user uploads an infringing item to Instagram, and a third-party site embeds it, the linking site is now transmitting/displaying the work even though there is no technological difference in the way the packets are flowing? If so, this suggests the court is actually characterizing an upload as implied permission to embed, which wouldn’t depend on the definition of display or transmission at all. #2 starts to veer into the trespass to chattels arena, where if a website blocks embedding, then it’s controlling its chattel regardless of its rights under copyright law. Otherwise, this sounds again like an implied permission to embed.

The court also has this mind-bending statement that fair use is a limiting doctrine: “when linked according to formats such as Full-Text View or the like, fair use provides a viable pathway to prevent links that rise to the level of infringement, regardless of the test.” I think the judge is trying to say that courts could conclude that the full text displays don’t qualify as fair use, but (1) fair use is a defense, not a limiting principle, and (2) a court only reaches the fair use defense if there’s an infringement, which the court just said there wasn’t. So I’m confused how this limitation could ever be reached.

The court adds that 1201 could also be a limitig principle because content can be put behind registration walls protected by 1201. UGH. While true, we’re seeing rampant 1201 abuse as an anti-scraping doctrine, something courts should definitely not encourage.

So does this ruling create a circuit split? Sort of…?

Yes, because the Fifth Circuit largely rejected the Ninth Circuit’s reliance on the definitions of “display” and “fixed” and instead rested its decision on the definition of “transmit.” Thus, the Fifth and Ninth Circuits are reading the statute differently. Also, this opinion is filled with so many tangents and asides that it kinda conflicts with just about everything.

No, because the circuits mostly reach the same result. Linking to copyrighted material shouldn’t be infringing, whether it’s done as embedding, in-line linking, or other methods that don’t require the user to take any further manual actions to see the linked content.

URLs as CMIs

Having wrecked the law of embedding and 106 copyright infringement, the court next turns its attention to wrecking 1202. This entire topic is mind-bending.

The plaintiff claims that a URL is copyright management information (CMI) for 1202 purposes, and framing “removes” the URL by obscuring it. First, this collapses the distinction between copyright and trademark by treating framing as a form of passing off. Second, if anyone copies any portion of the page without attributing the excerpt to the source page’s URL, would that constitute a 1202 violation? It seems like that would be the natural consequence of this argument.

The Fifth Circuit already gummed up 1202 in Energy Intel. Grp., Inc. v. Kayne Anderson Cap. Advisors, L.P., 948 F.3d 261, 277 (5th Cir. 2020), which held that electronic filenames could be CMI. I don’t have the energy to see how that opinion got off the rails, but that precedent forces this panel into more contortions because URLs are sorta like file names.

This leads to all kinds of tortured statements of how URLs are and aren’t like filenames, and my brain kept breaking with each subtopic. We get ponderous epistemological statements like:

URLs primarily operate as a functional utility of directing someone to the copyrighted work, as opposed to a filename, which is information inherent to the copyrighted work itself.

…and…

we find that a future court could conceivably discern that the URL website descriptor as-applied meets the CMI requirements, similar to PDF filenames. Importantly, though, this question remains a fact-specific inquiry for district courts to conduct in the first instance.

There is also this cringy footnote:

Take, for example, a New York Times article. The title of the article was: “3 Ways Operas Speak to the Moment, With Success and Failure,” yet as evident in the URL, the website descriptor is different entirely. Gabrielle Ferrari, 3 Ways Operas Speak to the Moment, With Success and Failure, N.Y. Times (May 19, 2026), https://www.nytimes.com/2026/05/19/arts/music/american-opera-projectsexperiments-in-opera-heartbeat-opera.html.

Hold on. Apparently, the panel doesn’t know that the NY Times experiments with many headlines but the URL only reflects the first…? SMH.

1202 refers to the word “link,” and this causes the panel to go into a tailspin:

Although intuitively a URL seems to be a link, the question remains whether we must construe “link” as a term of art in a particular way. Caselaw defining “link” under Section 1202(c)(7) is underdeveloped….

To qualify as a link to CMI, the URL would have to connect to an address that displays CMI, such as a page that contained a website’s copyright, disclosures, and permissions. Even still, we recognize that the nature of links is that they can change if the pages they locate are altered….

However, should the link be more stable, should it connect to a qualifying page, and should it provide notice of the CMI it is linked to, the broad language in Section 1202(c)(7) could provide a basis for URLs to constitute CMI.

UGH. Read that last paragraph again. WHAT??? The panel emphasizes that there are scenarios where 1202 could apply to URLs:

Following suit with our approach in Energy Intelligence Group, we leave open the possibility that certain URLs could possess the hallmarks of CMI. But, as described in the foregoing sections, several factors are essential to confirm before reaching that determination, including: whether the domain name corresponds with the copyright owner; whether the copyright is over the website as a whole or specific pages; whether the URL is sufficiently stable and not subject to change; and, above all, whether the URLs are clearly being conveyed for the purpose of communicating a copyrighted work.

What does this even mean? What harm would this approach redress?

One possibility is that the panel’s opinion will be read to create a free-floating obligation to cite a URL for any secondary works based on content from a web page. I don’t think the panel has any clue that it’s opened this Pandora’s box. EVERY online copyright infringement lawsuit in the Fifth Circuit should make a 1202 claim when the defendant’s secondary use didn’t include the source URL. Fun times ahead. The Fifth Circuit ultimately will need to walk back its Energy Intelligence precedent and rethink everything.

The panel has one more brain-breaker topic to mess up: what constitutes removal or alteration of a URL? That leads to the absolute soul-crushing discussion of the possibility that “shortening a URL would be a DMCA violation, even though the URL is just meant to take a user to the location of the copyrighted work. Our court, for example, incorporates permalinks of webpages into opinions to capture the source at the time of its citation.”

I’m not sure what the Fifth Circuit means by “permalinks.” Typically, a permalink includes both a persistent substitute URL and a cached copy of how the source material looked on the specified date. Permalinks cannot be merely URL shorteners, because otherwise, if the underlying URL changes or breaks, the URL shortener breaks too. I seems like the panel didn’t understand any of this…? On the plus side, to the extent that permalink usage could be a 1202 violation, the Fifth Circuit has invited linked sites to SUE THEM for 1202 violations!!!

After all of this hand-wringing and navel-gazing, the Fifth Circuit defers the denouement:

Future cases will need to decide where the line is with respect to such commonplace practices, including whether there is a distinction between using a URL shortener that excludes CMI or removing a URL altogether (e.g., framing the content on another webpage, under a different URL).

In light of the necessity of a fact-specific inquiry, we recognize that workability concerns abound. If certain URLs, but not others, are deemed CMI, further frustrating the lack of notice given externally, we must anchor on whether any alteration or removal was “intentional” to “remove or alter [the] copyright management information.”

I. Can’t. Wait. until these issues bounce back to the Fifth Circuit again so I will get the pleasure of reading more of their judicial handiwork.

Case Citation: Emmerich Newspapers, Inc. v. Particle Media, Inc., 2026 WL 2530247 (5th Cir. Aug. 27, 2026).

The post The Fifth Circuit Does Fifth Circuit Things in Copyright Embedding Case–Emmerich v. Particle appeared first on Technology & Marketing Law Blog.

* * *

[Note: as discussed below, I previously missed a Florida case previews the developments in this post. It’s still worth talking now because Snap’s choices are wild.]

Kansas state AG Kobach sued Snap for “deceptive and unconscionable practices” in Kansas state court. Like many other plaintiffs, Kobach argues that: Snap publicly lies to avoid getting slapped with mature ratings in app stores, and Snap designed itself to be addictive. Snap removed the Kansas case from state court to federal court, but Kobach sought to remand the case back to state court. This ruling grants Kobach’s remand request.

A case can remain in federal court if it involves “any person acting under an officer of the United States for or relating to any act under color of such office.” The litigant must show “(1) they acted under the direction of a federal officer, (2) the claim has a connection or association with government-directed conduct, and (3) they have a colorable federal defense to the claim or claims.”

To keep the case in federal court, Snap claims that it acted under the direction of a federal officer based on its work for DHS and FDA. For example, “Snap argues that it was helping DHS and the FDA discharge statutorily mandated missions.” Say what now?

First, Snap might not want to be highlighting its work for DHS or the FDA during the Trump era. I imagine many Snap users would not appreciate Snap taking money to become a propaganda proxy for the Trump administration.

Second, and more importantly, Snap has provided fodder to future plaintiffs who want to argue that Snap has become a state actor when it makes content moderation decisions. (There are a variety of ways plaintiffs can state those claims, typically under the umbrella of jawboning). I cannot see any scenario where Snap can financially or logistically handle the legal status of being a state actor. And it’s exposing itself to this potentially existential risk for…the benefit of remanding cases from state to federal court?

Snap could try to mitigate these harms in two ways. First, it can argue that any direction it took from the government was limited to specified topics and doesn’t implicate its broader content moderation function. Second, it could try to distinguish between being a jawboned entity for Constitutional purposes and the specific statutory elements of the removal statute, an argument strengthened by the fact that Snap’s request failed here (but see the Florida counterpart).

Despite that, Snap has provided plaintiffs with easy cut-and-paste material to support those plaintiffs’ claims that Snap “censored” them on behalf of the US government. Perhaps those claims will survive to summary judgment or even a trial where they might have failed on a motion to dismiss. Thus, as the cost of trying to obtain a smallish procedural win (i.e., to reposition what courts hears the cases), Snap has planted the seeds for long-term, expensive, and high-risk legal entanglements.

For that reason, as I read this case, my brain kept thinking of this clip:

* * *

If you want details about Snap’s work for DHS, Snap worked on the following projects:

• “Know2Protect, an educational campaign aiming to prevent “online sexual exploitation and abuse” and promote online safety”
• “Pledge2Protect, a campaign encouraging people “to take action and educate themselves concerning online child exploitation and preventative measures.””
• “Snap has helped DHS build “custom ‘lenses’”—a Snapchat feature that “allow[s] users to add interactive animations to photos and videos”—for its two campaigns”
• “DHS controls “where and how” its advertisements appear in Snapchat. And Snap obeys DHS’s request by targeting its campaigns to teenage users.”
• “Blue Campaign [] aims to prevent human trafficking and educate the public about human trafficking. DHS advertised Blue Campaign in Snapchat and dictated the placement of the ads.”

Some details about Snap’s work for FDA:

“The Real Cost” and “Next Legends” [] try to educate teenagers about the risks of nicotine and tobacco use. Snap helped the FDA build custom lenses featuring interactive animations that give facts about cigarette and vape usage….the FDA advertises in Snapchat to promote its campaigns. It “dictates” “where and how the advertisements” appear in Snapchat. Snap, per the FDA’s request, targets these advertisements to teenage users.

Much of this sounds like standard publisher-advertiser ad targeting interactions, i.e., the advertiser-customer directs the publisher-vendor to get the best ROI from the ads; with the tiny twist that this advertiser is the federal government. However, I couldn’t tell from this discussion how deeply Snap’s DHS and FDA work might have reached into Snap’s general content moderation activities.

The court says none of Snap’s evidence satisfies the statutory standards for being directed by a federal officer. The court summarizes:

No doubt, Snap performed some services for federal officers. Some of those services—like advertising on Snapchat—reflect no more than a standard arms-length commercial transaction. Other services, like lens production and custom research, didn’t involve a federal officer’s “strict guidance or control” over Snap. Snap thus has failed to identify any conduct that qualifies it as acting under a federal officer.

That conclusion ought to save Snap from the risks it has created for itself. However, Snap has successfully advanced this federal officer direction remand/removal argument at least once before in a case I previously missed. Off. of Att’y Gen. v. Snap Inc., 2025 WL 4035005 (N.D. Fla. Aug. 13, 2025), appeal docketed, No. 25-12814 (11th Cir. Aug. 18, 2025).

The Kansas court acknowledges the Florida lower court opinion:

The court respectfully disagrees with that case’s analysis, which suggests that Snap needn’t show a close or extensive relationship with the federal government to satisfy the acting-under prong. That conclusion isn’t tenable under Tenth Circuit law, which requires “strict guidance or control” and “close supervision of the private entity by the government[.]”

The fact that the Florida case is headed to the 11th Circuit makes that a potentially risky case for Snap and the industry generally. Imprecise words or broad statements from the appellate court could really put Snap (and others) into a much deeper legal hole. There’s also the chance Snap will appeal the Kansas ruling, giving a different appellate court the chance to do something wacky and problematic.

Case Citation: State v. Snap, Inc., 2026 WL 2525593 (D. Kansas Aug. 27, 2026)

The post Snap Wants to be a State Actor??–Kansas v. Snap appeared first on Technology & Marketing Law Blog.

Created by ChatGPT Sept. 2026

Meta’s settlement with the state attorneys general has been touted as industry-redefining. Indeed, Meta desperately hopes it will be. Although Meta was the only industry player to negotiate its terms, the settlement agreement is structured to broadly reshape the social media industry. In addition to Meta’s guaranteed settlement payments of $12 billion, Meta will pay the state AGs a total of $5 billion in additional bonuses — if the state AGs restrict minors’ usage of Meta’s key competitors (and make comparable settlement payments).

The settlement’s quid-pro-quo effectively places a bounty on the heads of Meta’s competitors — and deputizes the state AGs as Meta’s bounty-hunters. Meta wants the government to hit Meta’s rivals. If state AGs deliver the results Meta wants, Meta pays them off. The quid-pro-quo is not subtle. It’s out in the open for everyone to see, but that doesn’t make it any less corrupt or corrosive.

It’s easy to understand why Meta dangled the bounty in front of the state AGs. For years, Meta has urged governments to increase their regulation of social media—but only so long as any new regulation doesn’t disadvantage Meta more than its rivals. By unilaterally entering into the settlement agreement, Meta has exposed itself to a risk that it ends up as the only major industry player hindered by the agreement’s restrictions.

This would put Meta in a precarious market position, especially given the settlement agreement’s time limits on use and the fact that Meta’s competitors are just a click away for consumers. The economic benefits of having its competitors equally restricted are surely worth far more than $5 billion to Meta. That’s why Meta will happily share a piece of its financial upside with the state AGs if they deliver their end of the bargain.

While it’s clearly in Meta’s interests to pay off the state AGs to impose the settlement terms on Meta’s rivals, why are state AGs so eager to become Meta’s bounty-hunters?

To be fair, the state AGs have plenty of motivation to prosecute Meta’s social media rivals without any additional bounties from Meta. Indeed, prior to the settlement, several state AGs had already initiated enforcement actions against some of Meta’s rivals. The state AGs might view the $5 billion bounty as a financial windfall for doing work they were willing to do for free.

Unfortunately, any windfall from Meta’s bounty arrangement comes at a high cost to the state AGs and their constituents.

First, the quid-pro-quo taints all further social media-related state AG enforcement efforts against Meta’s rivals. Going forward, judges, juries and Meta’s rivals will justifiably wonder: Are the state AGs bringing the enforcement action because they genuinely believe their constituents are being harmed, or because they hope to cash in Meta’s bounty?

Second, the state AGs have shown how justice is for sale in their offices. The state AGs will do the anticompetitive work of controlling the marketplace activities of a company’s rival — if enough money is on the table. Putting a price on justice this way degrades the rule of law.

In promoting the settlement, the state AGs have proudly claimed that they are working to protect the children in their states. Instead, Meta’s bounty demonstrates that the state AGs are actually working for Meta. This is a good reason for the courts to think carefully about whether the settlement should be approved.

Our society needs to have difficult and high-stakes conversations about how we can improve children’s welfare online. By selling out the integrity of their enforcement decisions, the state AGs have discredited themselves as contributors to those conversations.

Eric Goldman is a law professor and associate dean for research at Santa Clara University School of Law. He has been teaching and researching internet law for over 30 years.

The post Op-Ed: Meta’s $5 Billion Deal with the State AGs to Take Down its Rivals appeared first on Technology & Marketing Law Blog.

On June 9, the Ninth Circuit granted rehearing en banc in Sedlik v. Von Drachenberg, agreeing to reconsider the test for infringement first adopted in Sid & Marty Krofft v. McDonald’s back in 1977. At the time, we had just begun work on a joint project looking at copyright infringement doctrine generally, but we immediately pivoted to writing an amicus brief. Why ruin three perfectly good summer weeks in this way? This is the best opportunity the Ninth Circuit has had in decades to not only abandon its idiosyncratic approach to substantial similarity, but to take the lead by adapting copyright infringement doctrine for the age we are in now, when infringement cases often go to a jury. It could be a long time before another chance presents itself.

We’ll get to our specific proposal in a future post, but in this post we want to focus on how to frame the issue coming up before the full(ish) court, which will hear oral argument in this appeal on Tuesday, September 29. What does the Sedlik trial say or, even more importantly, not say about the shortcomings of the Ninth Circuit’s infringement test? One common reaction to the verdict below, including from the three-judge panel, was that the only reason the jury found in favor of the defendant is that its attention was “divert[ed]” from “objectively substantial copying of protected expression” by the vague language in the Ninth Circuit’s “intrinsic” test for substantial similarity. But we have our doubts that that is correct as a factual matter, and the danger is that mistaken perceptions about how the infringement inquiry is currently operating could lead the Ninth Circuit astray once more.

Before we get there, some brief background. Sedlik involves a copyright infringement claim by Jeffrey Sedlik, who took the well-known photo of Miles Davis on the left, against Katherine von Drachenberg, a/k/a “Kat von D,” who created a tattoo based on the photograph (at right). After a four-day trial, the jury rendered a verdict of non-infringement as to the tattoo and various social media posts, checking off a box that read “Not Substantially Similar” for each of six works at issue. The district court judge then denied Sedlik’s Rule 50(b) motion, and the Ninth Circuit affirmed. (The affirmance has now been vacated pending en banc review.)

Two judges on the panel, Judges Wardlaw and Johnstone, wrote lengthy concurrences expressing frustration that their hands were tied by the court’s “intrinsic test,” which “considers the perspective of the ‘lay observer’” and asks the jury to perform “a holistic comparison that focuses on whether the works are substantially similar in the total concept and feel of the works.” The panel believed that reversing a jury verdict on the intrinsic test “would be tantamount to ‘supplanting the jury’s subjective interpretation with [our] own,’” Sedlik panel op. at 15, making it “all but unreviewable” (Johnstone, J., concurring). As a fix, Judge Wardlaw proposed “dispensing with [the intrinsic test] altogether,” noting “the dispositive role the intrinsic test played here.”

We have a question about the right way to interpret this chain of events, but first we need to more fully explain the Ninth Circuit’s terminology and where it came from. (Copyright mavens can skip the next two paragraphs.) The golden era of test-making in copyright law dates from around the middle of the twentieth century. The Second Circuit was the first out of the gate with a multi-stage infringement inquiry in 1946’s Arnstein v. Porter. Under the original Arnstein framework, after establishing ownership of a valid copyright, the plaintiff had to make a two-part showing of infringement: that the defendant actually copied material from the plaintiff’s work, and that the copying took enough of “what is pleasing to lay listeners” to constitute wrongful appropriation. In later cases, the wrongful appropriation step was designated with a different term, “substantial similarity.”

The Ninth Circuit began developing its own version of the Arnstein inquiry in 1977’s Sid & Marty Krofft v. McDonald’s Corp. The key insight that prompted the new test was that nowhere in the Arnstein inquiry was the court formally required to evaluate how much of the allegedly copied material was protected expression. Copying of unprotected material, no matter how extensive, is insufficient to make a defendant liable for infringement. The Krofft panel’s solution, however, was to recombine pieces of Arnstein into a framework that, after establishing ownership of a valid copyright, required a plaintiff to show three things: access to the plaintiff’s work (which was part of Arnstein’s actual copying stage), followed by two forms of substantial similarity. First, there is the so-called extrinsic test, which as presently defined identifies and compares “the protectable elements of the plaintiff’s expression” in order to “assess similarities in the objective details of the works. The second form of substantial similarity is the intrinsic test, which “considers the perspective of the ‘lay observer’” and asks the jury to perform “a holistic comparison that focuses on whether the works are substantially similar in … total concept and feel.”

It’s the intrinsic test that was the focus of attention in the panel decisions: the per curiam opinion concluded that “the district court did not err in denying Sedlik’s Rule 50(b) motion because the jury’s verdict was based on an application of the intrinsic test,” and in turn “[b]ecause the jury’s verdict was based on an application of the intrinsic test, we will not second-guess it.” The concurring opinions likewise lamented that the result “came down to the ‘intrinsic’ test,” producing an “inscrutable no-infringement verdict.”

That leads to our question: Why is everyone so certain that the jury decided this case based on the intrinsic test? It’s not just the panel judges; most commentators have made the same assumption. (One of us (Said) has a forthcoming essay, Reading the Jury’s Mind, that dives into further detail on this question.) The assumption is not only unwarranted, it’s misleading; it suggests that the way to fix the Ninth Circuit framework is to eliminate the intrinsic test. While we agree the intrinsic test should go, the right way to do that is by rethinking the whole infringement determination, not by targeting only one subpart.

It could turn out that the well-known problems with the intrinsic test are a red herring in this case. Here’s the issue: under the Ninth Circuit framework, the plaintiff must demonstrate both forms of substantial similarity to prevail at trial, the extrinsic test and the intrinsic test. The jury was clearly informed, in its instructions and at trial, that it needed to consider both tests. As a result, the jury could have found for the defendant on the basis of the extrinsic test, the intrinsic test, or both. Indeed, the substantial similarity instructions required the jury to consider the extrinsic test as their “first step,” and if they failed for the plaintiff there, the inquiry was over. See Jury Instr. 20. That means that the jury may never even have reached the intrinsic test.

What makes a verdict based on the extrinsic test a plausible scenario is that the jury heard a considerable amount of argument and evidence at trial that the elements copied by the defendant were not copyrightable, which for all we know could have been the basis of its verdict. The verdict form sheds no light on this; none of the six questions on substantially similarity broke the question down by test. (As a side note, it is possible to include doctrinal nuance for the jury to decide, as we saw with Griffin v. Sheeran’s detailed verdict form, which allowed the jury to make clear that it was finding for Sheeran on the basis of independent creation.) In her post-trial decision, Judge Dale Fischer seemed to agree: “The Court must draw the reasonable inference that the jury found that it was the unprotected elements of the Portrait that were copied.” Both parties then briefed the Ninth Circuit panel on both the intrinsic and the extrinsic tests on appeal, which suggests that they considered the issue a live one at that point. In fact, one of Sedlik’s main arguments—at summary judgment, and again on appeal—was that the extrinsic test ought to dispose of the case as a matter of law, in his favor. It’s therefore puzzling, given its role in the litigation up until that point, that the extrinsic test has pretty much disappeared from view.

So why has everybody been assuming that the jury verdict was based only on the intrinsic test? It makes sense that the panel would base its decision on the intrinsic test; an appellate court can affirm on any basis present in the record, and since according to Ninth Circuit case law, the intrinsic test is now characterized as unreviewable, that provides a quick resolution to the appeal. But that’s a different question from what the jury in fact decided, and much of the commentary seems to be making an unsupported assumption that the jury was on track to find for the plaintiff until it was derailed by the intrinsic test. We think instead that, on a review of the record, the proper outcome of the infringement inquiry is not obvious in this case (in fact we disagree), but we agree that the en banc rehearing presents an opportunity for the Ninth Circuit to fix the sequencing and elements of the decision-making process in infringement cases, which has been a problem ever since Sid & Marty Krofft was decided.

One possible explanation for why the panel focused on the intrinsic test may have had to do with how the infringement inquiry is usually litigated in the Ninth Circuit. As we’ll explain later, the infringement inquiry is a mixture of factual and legal questions that are difficult to split apart but are problematic to consider together. The Ninth Circuit framework addresses this problem by allowing judicial review of the extrinsic test, but only the extrinsic test, on a motion for summary judgment. In some ways this makes sense, because the question of what in the plaintiff’s work constitutes protectable expression is one of the more legal tasks in the infringement inquiry. There thus may be some temptation to think of the extrinsic test as an issue for the judge, leaving only the intrinsic test as an issue for the jury. But that’s not what happens. The parties may not even move for summary judgment on the extrinsic test. Even if there is such a motion and it is denied, the jury will then consider both tests, not just the intrinsic test. If anything, the jury is likely to focus even more attention on the extrinsic test, which it is typically instructed to consider first. Whatever happens beforehand, once the case gets to trial, the jury is then asked to do much of the work of filtering unprotected material from the plaintiff’s claims.

In a subsequent post, we’ll address another issue that particularly concerned the Sedlik panel judges, the apparent “asymmetry” in granting summary judgment for defendants if the extrinsic test fails, but denying summary judgment to plaintiffs if they succeed on the extrinsic test. And we’ll describe and expand upon the solution proposed in our amicus brief, namely, that wrongful appropriation be reformulated to include a clear test for protected expression followed by an assessment of the appropriation considered from the perspective of the ordinary observer, also known as the audience test. Stay tuned!

Prior Tattoo Copyright Blog Posts

• Tattoo Artist Wins Copyright Claim, But Gets Zero Damages–Alexander v. Take Two
• Videogame Maker Has Implied License to Depict Copyrighted Tattoos–Hayden v. 2K
• This Blog Has Jumped the Shark: I’m Covering a Copyright Opinion About a Tattoo of Tiger King’s Joe Exotic–Cramer v. Netflix
• Jury Awards Damages to Tattoo Artist for Video-Game Depiction–Alexander v. WWE 2K
• Can Tattoos Infringe Copyrights, and If So, What Happens Then?–Sedlik v. Kat Von D
• Depicting Randy Orton’s Tattoos in a Video Game Could Be Copyright Infringement–Alexander v. WWE 2K
• Videogame Doesn’t Infringe Tattoo Copyright By Depicting Basketball Players–Solid Oak Sketches v. 2K Games
• Copyright and Tattoos: Hangover II Injunction Denied, But the Copyright Owner Got Some Good News Too–Whitmill v. Warner Bros.
• Tattoo Advertising/Human Billboards
• Copyright in Tattoos
• Also, see Q2 of my 2005 contracts law exam and the sample answer.

The post Sedlik v. Von Drachenberg: All About That Intrinsic Test? (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

In Kangol, the Seventh Circuit said that email service to Chinese defendants isn’t permitted unless the defendant’s address is unknown. So at issue in this case is Deckers’ diligence about determining the defendant’s address. Here’s what Deckers did:

Deckers explained that it searched for the address and entity associated with Litfun’s Amazon account on Google Maps, Baidu Maps, and Bing Maps.  Deckers also searched for the address and entity associated with an earlier lawsuit it brought against a Walmart store using the seller alias “LITFUN” on the same platforms. The searches did not locate either of the addresses “and/or” defendant at these addresses….

While Litfun concedes that it has not taken steps to register its business or address with Google Maps, Baidu Maps, or Bing, it notes that at least two “well-known,” publicly available Chinese databases show the correct address and company name.

The court criticizes Deckers’ effort: “Deckers failed to make reasonably diligent efforts to ascertain and verify Litfun’s mailing address before seeking email service.” The court explains:

• “no authoritative case holds that being unable to verify a defendant’s address on three search engines—despite the address being verifiable on other popular platforms—constitutes reasonable diligence”
• “at least some of the screenshots taken from plaintiff’s searches depict buildings located at the searched address (as opposed to vacant plots of land). Indeed, counsel’s declaration stated only that the searches did not locate the searched address “and/or” did not locate defendant at the searched address. Reasonably diligent efforts require more. Plaintiff’s use of “and/or” suggests that some physical addresses were returned in the search results but were not specifically tied to defendant in the search results. If an investigation reveals a physical address, reasonable diligence calls for a next step to determine whether that address could be tied to the defendant through other reasonably available sources” (emphasis added).
• “it is unclear from the record that plaintiff made its alleged efforts before resorting to email service…Plaintiff did not contend that it had exercised reasonable diligence before requesting email service….Before moving for electronic service of process, Deckers needed to take meaningful steps to verify defendant’s address. For example, Deckers could have used more than a search engine (such as more specialized corporate directories or databases) or sent a representative to the reported addresses to confirm that defendant was not operating there” (emphasis added).

So the court lays out two challenges to other SAD Scheme plaintiffs seeking email service of Chinese defendants. First, the plaintiffs have to actually try to find the defendant’s address; and second, if they have some indication that the defendant has a physical address, they have to take reasonable investigatory steps to resolve its accuracy before pleading that the defendant’s address is unknown. This may sound intuitive, but remember the SAD Scheme lives in a parallel due-process-optional universe.

Of course, the court’s standards require plaintiffs to be fully forthcoming with judges in ex parte proceedings and to do individualized defendant-specific homework–steps that SAD Scheme plaintiffs have routinely been allergic to taking. So long as judges rubber-stamp SAD Scheme plaintiff requests, plaintiffs will get away with illegitimate requests to serve Chinese defendants by email. But if other judges follow this opinion’s approach, SAD Scheme plaintiffs will routinely ace themselves aced out of email service and have no good way of serving Chinese defendants. That will have a major impact on the SAD Scheme.

* * *

Litfun also claimed that Deckers “pinches” defendants from cases as a form of judge shopping (echoing Prof. Fackrell’s nomenclature). The court says:

Plaintiff’s litigation practice can look like judge shopping, but the conduct also fits a pattern of a repeat litigant adapting to and complying with the variety of practices employed by different judges in this district….

it is not improper for a plaintiff to proceed against dismissed defendants in a new case where the original judge concluded that the defendants had been misjoined in the first place

Thus, the court rejects Litfun’s request for sanctions for Deckers’ alleged judge-shopping in this case. But the judge does warn that “this does not mean that plaintiff should be entitled to drop a defendant from a complaint over and over again without consequence.” The court acknowledges the potential for plaintiff gamesmanship:

Plaintiff’s technique of effectively achieving a dismissal without a Rule 41 notice by filing a new complaint under Rule 15(a) suggests a gap in the rules….Until the Federal Rules of Civil Procedure close that gap, policing these dismissals falls under the court’s inherent authority

This is what I and others have been saying for years. Plaintiffs exploit soft spots in IP law and FRCP to achieve unjust results. Judges have to plug these doctrinal gaps, especially when the plaintiffs are proceeding ex parte and the judges are not hearing any counternarratives from defendants. Until judges properly supervise and sanction such abuses, plaintiffs will keep filing defective SAD Scheme cases and getting outcomes that defy the rule of law.

Here, the judge concludes that Deckers’ prior dismissals of Litfun were not in bad faith, so the judge does not issue terminating sanctions. Instead, Deckers can try to serve Litfun through the remaining service options, if the time for service has not passed.

Case Citation: Deckers Outdoors Corp. v. Litfun, 1:25-cv-10080 (N.D. Ill. Sept. 14, 2026)

Prior Blog Posts on the SAD Scheme

• SAD Scheme Plaintiff Must Pay $40k to Defendant–Guangzhou Tinpod v. Schedule A Defendants
• New York Judge Shuts Down a SAD Scheme TRO Request–CJB Global v. Schedule A Defendants
• Every SAD Scheme Opinion Is Weird In Its Own Way–Cai v. Chaozhoushi Yitong Dianzi Shangwu Youxiangongsi
• Federal Circuit Rebuffs SAD Scheme Plaintiff–Shenzhen Jisu v. Annex A Defendants
• Court Rebuffs Emojico’s SAD Scheme TRO Request
• Seventh Circuit Limits Email Service to Chinese SAD Scheme Defendants–Kangol v. Hangzhou Silk
• SAD Scheme Defendant Gets Damages Payout from the Bond–Bright Head v. Schedule A Defendants
• Judge Shopping & Schedule A (Guest Blog Post)
• SAD Scheme Plaintiff Gets Default Win But Blows the Layup on Damages–Shenzen Huajie v. Shenzen Leyibei
• SAD Scheme Copyright Plaintiff Must Compensate Defendants–Shenzhen Langmi v. Schedule A Defendants
• A “But They’re ‘Counterfeiters’!” Argument Doesn’t Clinch a SAD Scheme TRO–Emojico v. Schedule A Defendants
• New Article Alert: “SAD Scheme Standing Orders”
• Greer Burns Law Firm Sanctioned for “Willfully Abusive” and “Egregious” SAD Scheme Judge-Shopping
• Schedule A: Ten Notable Developments in 2025 (Guest Blog Post)
• Second Circuit Rejects Email Service on Chinese Defendants in Baby Shark SAD Scheme Case
• 11th Circuit Sidesteps the SAD Scheme’s Problems–Ain Jeem v. Schedule A
• Another Shill Article Tries to Normalize the SAD Scheme
• Court Sanctions Plaintiff’s Lawyer for Unverified Claims That the Defendant Was Hiding–Guangzhou Youlan Technology Co. Ltd. v. Onbrill World
• SAD Scheme Cases Are a Cesspool of IP Owner Overreaches–Nike v. Quanzhou Yiyi Shoe Industry
• District of New Jersey Adopts SAD Scheme Standing Order
• Court “Sanctions” SAD Scheme Judge Shopping—Crimpit v. Schedule A Defendants
• Chicago-Kent SAD Scheme Symposium TOMORROW
• Amicus Brief Urges Seventh Circuit to Award Attorneys’ Fees in SAD Scheme Case–Louis Poulsen v. Lightzey
• Court Rejects Schedule A Claims Against Sellers of Compatible Parts/Accessories (Cross-Post)
• Judge Kness: the SAD Scheme “Should No Longer Be Perpetuated in Its Present Form”–Eicher Motors v. Schedule A Defendants
• SAD Scheme Lawyers Sanctioned for Judge-Shopping–Dongguan Deego v. Schedule A
• Judge Ranjan Cracks Down on SAD Scheme Cases
• Because the SAD Scheme Disregards Due Process, Errors Inevitably Ensue–Modlily v. Funlingo
• SAD Scheme-Style Case Falls Apart When the Defendant Appears in Court—King Spider v. Pandabuy
• Serial Copyright Plaintiff Lacks Standing to Enforce Third-Party Copyrights–Viral DRM v 7News
• Another N.D. Ill. Judge Balks at SAD Scheme Joinder–Zaful v. Schedule A Defendants
• Judge Rejects SAD Scheme Joinder–Toyota v. Schedule A Defendants
• Another Judge Balks at SAD Scheme Joinder–Xie v. Annex A
• Will Judges Become More Skeptical of Joinder in SAD Scheme Cases?–Dongguan Juyuan v. Schedule A
• SAD Scheme Leads to Another Massively Disproportionate Asset Freeze–Powell v. Schedule A
• Misjoinder Dooms SAD Scheme Patent Case–Wang v. Schedule A Defendants
• Judge Hammers SEC for Lying to Get an Ex Parte TRO–SEC v. Digital Licensing
• Judge Reconsiders SAD Scheme Ruling Against Online Marketplaces–Squishmallows v. Alibaba
• N.D. Cal. Judge Pushes Back on Copyright SAD Scheme Cases–Viral DRM v. YouTube Schedule A Defendants
• A Judge Enumerates a SAD Scheme Plaintiff’s Multiple Abuses, But Still Won’t Award Sanctions–Jiangsu Huari Webbing Leather v. Schedule A Defendants
• Why Online Marketplaces Don’t Do More to Combat the SAD Scheme–Squishmallows v. Alibaba
• SAD Scheme Cases Are Always Troubling–Betty’s Best v. Schedule A Defendants 
• Judge Pushes Back on SAD Scheme Sealing Requests
• Roblox Sanctioned for SAD Scheme Abuse–Roblox v. Schedule A Defendants
• Now Available: the Published Version of My SAD Scheme Article
• In a SAD Scheme Case, Court Rejects Injunction Over “Emoji” Trademark
• Schedule A (SAD Scheme) Plaintiff Sanctioned for “Fraud on the Court”–Xped v. Respect the Look
• My Comments to the USPTO About the SAD Scheme and Anticounterfeiting/Antipiracy Efforts
• My New Article on Abusive “Schedule A” IP Lawsuits Will Likely Leave You Angry
• If the Word “Emoji” is a Protectable Trademark, What Happens Next?–Emoji GmbH v. Schedule A Defendants
• My Declaration Identifying Emoji Co. GmbH as a Possible Trademark Troll

The post Court Wipes Out SAD Scheme Default Judgment Due to Improper Email Service–Deckers v. Litfun appeared first on Technology & Marketing Law Blog.

* * *

Matthew Kalil was an NFL offensive lineman from 2012-2019. He was drafted by the Minnesota Vikings as the fourth overall pick in the 2o12 NFL draft. He made the Pro Bowl and later signed a $55M contract with the Carolina Panthers.

Haley Kalil was a beauty queen who married Matt and became an NFL wife. She also has become a major social media influencer under the alias Haley Baylee. In 2026, she had 15.9 million TikTok followers, 9.3 million Instagram followers, 8.07 million YouTube subscribers, 1.6 million Snapchat followers, and 1.3 million Threads followers.

Matt and Haley married in 2015 and divorced in 2022. In this lawsuit, Matt is suing Haley for public disclosure of private facts for a post-marriage disclosure.

Created with ChatGPT Sept. 2026

In 2025, Haley did a Twitch livestream interview (posted to YouTube) with another prominent influencer, Marlon. In the interview, Haley and Marlon discuss the reasons for Haley’s divorce. During their conversation, Haley texted Marlon (i.e., so her remarks weren’t seen or heard by the viewing audience) with details about “the biggest factor” in the divorce. The court summarizes the discussion that ensued:

it quickly became obvious that Haley was referring to the size of Matt’s penis. “[H]e’s like 0.01 percent of the population, okay,” Haley said, adding that “[w]e tried everything … you’re going to be in tears type of shit.”…

Haley acknowledged that a certain aspect of Matt’s penis was “[t]otally fine” and “like, average,” but she then said (moving her hands along a horizontal plane) that “he was just … like two [C]oke cans stacked on top each other. Maybe even a third ….”

The court says these disclosures are highly offensive to a reasonable person. However, the court dismisses the lawsuit because “Haley’s remarks about the size of Matt’s penis and its impact on her health and marriage were remarks about a matter of legitimate public concern.”

The court explains:

for at least two millennia, the private lives of public figures have been of legitimate interest to members of the public. One of the most famous works of history—Suetonius’s The Lives of the Twelve Caesars, written in 121—is a notoriously gossipy collection of biographies of 12 leaders of ancient Rome that includes many details about their sex lives.

I don’t think anyone disagrees that public figures’ sex lives are of public interest, but that doesn’t really address the issues in this lawsuit. The real question is: when are details about a public figure’s sex lives still considered legally private, or do public figures have no intimate privacy at all?

The court acknowledges that “public curiosity does not necessarily equate to legitimate public concern.” Still, the court thinks the celebrity status of both Matt and Haley essentially creates a privacy-free zone:

Matt and Haley were indisputably celebrities during the time of their marriage and remain so today…

Matt would be a celebrity even if he had never met Haley. He was not just a guy who was on the roster of an NFL team. Instead, he was the fourth overall pick in the 2012 NFL draft, and he played in the NFL for several years. He was paid tens of millions of dollars to play football, and he had considerable success—even being named to the Pro Bowl. Second, Matt is also a celebrity because he met Haley—specifically, because he was married to Haley, who was a celebrity in her own right during their marriage, and whose fame has only grown since their divorce….

[I note that this is a Minnesota judge talking about a Minnesota NFL player. I wonder if the celebrity assessment would have been different in a jurisdiction where Matt never played?]

If the only source of Matt’s celebrity was his career as a football player—and if Haley was just a random social-media maven who passed on gossip about the size of Matt’s penis to get a laugh or to attract attention—then the Court would readily find that Haley’s comments were not of legitimate public concern. But that was not what happened….

Her comments—including her comments about Matt—were about her life, her marriage, and her divorce, all of which are topics about which her millions of followers have a legitimate interest….

Haley’s comment about “Coke cans” was certainly crude. But all of her comments about Matt’s penis size were in the context of describing the “trauma” she suffered during her marriage, the couple’s seeking help from doctors and therapists, and ultimately the couple’s decision to divorce. In short, Haley was discussing her life, not Matt’s, and the law generally protects a person’s speech about herself, even though such speech inevitably reveals details about others.

The court is 100% correct that a person cannot tell their life story without also simultaneously telling the story of those they interact with. This is one of the classic tensions between privacy law and free speech. When privacy law and free speech collide, we generally cannot let privacy law override our truth and our histories.

However, the court treats all of Haley’s disclosures as equally permissible, a conclusion that isn’t obvious to me.

Consider the following list of hypothetical statements Haley might have made. Which ones cross the tort line?

• [a] “We were sexually incompatible”
• [b] “Matt and I went to doctors to see if we could find a way to make sex not painful, but they couldn’t help”
• [c] “Matt’s penis was so large that sex was painful”
• [d] “Matt’s penis was so large that sex was painful” (accompanied by illustrative hand gestures)
• [e] “Matt’s penis is 10 inches long and 8 inches in circumference, and this made sex painful.” (Note: A Coca-Cola can is 4.83 inches high and 8.17 inches in circumference, so this is essentially what Haley was implying).

Statements [a] and [b] never should be tortious disclosures of private facts for the reason identified by the court, i.e., they are part of Haley’s life story that she is free to share. The extra detail in statement [c] reveals more information that may be private to Matt and isn’t necessarily required to tell Haley’s story, but I would still lean towards permitting the disclosure.

Statements [d] and [e] seem qualitatively different to me, because they provide more specific and concrete details that are sensitive, aren’t needed to explain Haley’s life story, and thus couldn’t qualify as matters of “legitimate public concern.” I think the court could have distintinguished Haley’s disclosures of the hand gestures and the Coca-Cola can analogy from the other disclosures.

From my perspective, the litigants’ celebrity status is irrelevant to this analysis. I think private individuals should be equally free to disclose statements [a]-[c] as part of telling their life stories, regardless of the celebrity status of anyone involved, and I don’t think the detailed disclosures in statements [d] or [e] should be fair game only because the described person is a celebrity. I might feel differently if the celebrity had put their genital size into the public discourse (e.g., Trump’s repeated discussions about his penis size). That’s not the circumstance here.

If anything, the court could have treated Matt’s celebrity status as a reason to evaluate Haley’s statements more closely. In our celebrity-obsessed culture, the audiences have an insatiable demand for, and focus on, specific details. For that reason, Haley’s disclosures of specific details was guaranteed to garner additional attention. Knowing this, we might want people to tread more cautiously when disclosing specific details about their private interactions with celebrities.

Although his lawsuit had some doctrinal support, I am a little confused about Matt’s decision to sue. How could a successful lawsuit be a win for Matt? (I’m assuming Matt is not playing a 4D chess game).

Divorced couples routinely look for ways to tweak each other, but the court opinion doesn’t suggest that Matt and Haley had that kind of post-marriage dynamic. (Of course, who knows what was taking place out of the public eye). Certainly this lawsuit is likely to further sour whatever post-marriage relationship they had.

Worse, this case is a textbook example of the Streisand Effect. Haley’s initial disclosures produced a news cycle, with some residual publicity over time. Matt’s lawsuit ensures that Haley’s disclosures will generate more news cycles–the lawsuit filing, the initial decision, any further proceedings. To that point, Matt has already promised an appeal, which ensures additional coverage cycles that continue to amplify Haley’s initial disclosures.

I also struggle to see any meaningful remedies. Haley’s past disclosures cannot be enjoined. An injunction against further disclosures (or the threat of a future lawsuit) might prevent new details from emerging, but perhaps that could have been negotiated or secured through non-judicial means.

As for damages, I’m skeptical that the lawsuit is about money given Matt’s lifetime earnings. Also, I’m not sure how a court would set damages from Haley’s disclosures. The opinion didn’t suggest Matt lost any economic opportunities, and it’s tough to put a meaningful price tag on a plaintiff’s embarrassment or emotional distress.

Case Citation: Kalil v. Kalil, 2026 WL 2754923 (D. Minn. Sept. 17, 2026).

If you’ve seen the movie, this clip from Blazing Saddles was probably on your mind too:

The Seinfeld episode, The Hamptons, is also topical.

The post When is a Man’s Penis Size a “Matter of Legitimate Public Concern”?–Kalil v. Kalil appeared first on Technology & Marketing Law Blog.

Previously, California appellate courts denied a private right of action for parts of the law.  This ruling, also precedential, takes a different approach. It rejects the plaintiffs’ tendentious reading of the defendant’s TOS. By applying common-sense readings to TOS provisions, this case further thwarts the plaintiffs’ bar trying to turn the Yelp Law into a general purpose nuisance-litigation tool.

Ulta’s TOS had the following two provisions:

• In the trademarks section: “ULTA’s trademarks and trade dress may not be used in connection with any product or service that is not ULTA’s, in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits ULTA.”
• In the termination provision: “Ulta Beauty may, without incurring any liability to the Customer, terminate access by such Customer, or suspend any Customer’s access to all or part of the Site, without notice, for any conduct that Ulta Beauty, in its sole discretion, believes is in violation of any applicable law or this Agreement, or is harmful to the interests of another user, a third-party, a merchant, a sponsor, a licensor, a service provider, or Ulta Beauty”

These provisions could and should be drafted better. However, anyone who has ever drafted one of these provisions knows that they do not expressly or implicitly restrict consumer reviews–unless the plaintiffs adopt a completely tendentious and indefensible interpretation that no reasonable consumer would ever make. Because the court takes a common-sense approach to reading, this is an easy case.

With respect to the trademark provision, the appellate court says:

The clause prohibiting use of defendants’ trademarks to disparage or discredit defendants must be construed in light of how the Terms describe what defendants’ trademarks are (website appearance and functionality items) and in light of the full context of the Trademarks Paragraph—which, naturally, is focused on trademark violations and not customer comments (which are instead addressed separately in the Terms)….

The disparage or discredit clause in this last sentence (like the clauses that precede it) is used only in context of trademark and trade dress violations, and the paragraph enumerates what trademarks or trade dress are at issue—graphics, logos, page headers, button icons, scripts, and service names. These are website functionality and appearance items unlikely to be used, and certain not to be used in any meaningful way, in customer comments. There is accordingly no reason to understand the disparage or discredit clause as limiting or waiving consumers’ right to speak—and this is all the more true when a separate paragraph in the Terms is dedicated to addressing the topic of customer reviews

While this is obviously correct, Ulta should not include anything in its contract that purports to restrict how consumers “use” their trademarks (because that can become a backdoor naked licensing issue), and the TOS should not attempt to explicitly restrict any consumer efforts to disparage or discredit anything because that’s none of Ulta’s business. Honestly, the TOS would be stronger if the sentence were deleted entirely.

With respect to the termination provision:

Acknowledging defendants’ discretion to terminate or suspend use of their website for “conduct . . . harmful to the interests of . . . [defendants]” does not constitute a general waiver of consumers’ right to criticize defendants….

on its face, there is nothing in this provision that prohibits consumers from making any statement regarding defendants. At most, the provision reserves defendants’ right to respond by blocking a consumer’s access to their website….The bare fact that an agreement potentially gives a company the means to violate subdivision (a)(2) does not demonstrate a violation of subdivision (a)(1). Otherwise, any reservation of the right to block consumer access to a retail website would violate subdivision (a)(1)—even with an express acknowledgment that the company may not do so in retaliation for speech regarding the company.

If in fact Ulta blocked consumers from accessing its services because they wrote critical reviews, then the Yelp Law might have something to say. That’s not the case here (the court says “plaintiffs did not allege they were blocked from accessing defendants’ website”).

If you’re in charge of drafting your TOS, you can reduce the risk of abusive Yelp Law claims by doing a comprehensive review of your TOS, using an extremely tendentious and illiterate filter to remove any language that could be misinterpreted as a restriction on consumer reviews. And it’s always a good idea to do an editing pass on the TOS to find and remove provisions that aren’t really needed. If Ulta had followed this procedures, it might have avoided the hassle of this lawsuit.

Selected Blog Posts Regarding 1670.8

• Lawyer’s Fee Agreement Gagging Client Reviews Is Illegal–LS Carlson Law v. Sedgwick
• Another Court Shuts the Door on “Yelp Law” Drive-By Lawsuits–Arterberry v. Peet’s
• 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 Abusive “Yelp Law” Lawsuit Fails–Scott v. Ulta appeared first on Technology & Marketing Law Blog.

The opinion summarizes:

As part of its ubiquitous ride-hailing service, Uber permits a user to order “guest rides” for third parties remotely. Guest riders can travel unaccompanied by the user and need never have downloaded Uber’s app orcreated an account themselves. This case concerns what legal obligations a guest rider owes to Uber by virtue of using the service.

In this case, Cheryl ordered an Uber ride for her husband Carroll. Carroll suffered significant personal injuries on the ride. Uber sought to direct Carroll’s claims to arbitration. The court says Carroll never agreed to Uber’s TOS, so no arbitration.

The court summarizes its legal conclusion:

Uber relies on its having sent Carroll a text message before the guest ride that included a hyperlink to the Terms and stated that taking the ride would manifest his assent to them. But Uber cannot show that Carroll ever saw its unsolicited message, and contract law imposes no duty to read a contract that one does not know exists. Uber alternatively submits that Carroll could be separately bound to arbitrate his claims under Cheryl’s contract with Uber. Carroll does not seek to enforce his wife’s contract, however, and he had no more notice of its terms when he took the guest ride.

Why Didn’t the Text Message Work?

Uber texted Carroll:

Your Uber from Cheryl is arriving in 10 minutes. \n \nBy taking this trip, you agree to the Uber Terms of Use & Privacy Policy: t.uber.com/lgl. \n n\Track here/nhttps://trip.uber.com/Wu8vBbIYEf3A \n\nReply STOP to opt out from SMS notifications.

The court says that Carroll did not have inquiry notice:

Under the design of Uber’s guest-rider system, it never required Carroll to click on an “I accept” button or its equivalent, or to otherwise expressly confirm his acceptance of the Terms. Nor was Carroll presented with a website- or app-based interface that contained a link to the Terms and stated that taking the ride would manifest his assent to them. Instead, Uber simply sent Carroll a text message with that information and anticipated he would see it before taking the ride. But individuals are not on inquiry notice when they must “ferret out hyperlinks”—even when they are already using the apps or webpages on which the links appear….In focusing on the layout and language of the text message it sent Carroll, Uber skips over a critical difference between this case and the mine run of internet-contracting cases: Carroll never saw the message, so it is irrelevant whether he would have been on inquiry notice from the message had he seen it.

Uber suggested that Carroll surely saw its text. The court responds:

The system Uber designed did not require guest riders to read the text messages Uber sent them before using the service. Nor did its system as a practical matter require guest riders to open the messages to obtain information about their rides…

we disagree that an objectively reasonable person in Carroll’s position necessarily would have read the text message from Uber before taking the guest ride….At least until they enter the vehicle, the guest rider’s relationship to Uber’s service is entirely passive; they need never have interacted with the company in any way. In that context, it is far from apparent that a reasonable person would expect to receive an unsolicited text message calling for them to examine voluminous contract terms in the short window before their ride arrives. And although Carroll’s practice of never reading text messages may be idiosyncratic, there is no legal duty to perpetually monitor one’s phone for incoming messages that may contain contract terms interspersed with other text.

“Never reading text messages” sounds like aspirational goals for many of us.

Other Ways of Binding Carroll

Carroll isn’t a third-party beneficiary of Cheryl’s TOS with Uber. “Carroll is not seeking to enforce Cheryl’s contract with Uber, nor did he otherwise consent to be bound by its terms….if Carroll was an intended third-party beneficiary of the contract between Cheryl and Uber, that would simply mean he could sue Uber to enforce its obligations to Cheryl. That is a far cry from saying he incurred his own obligations to Uber from a contract to which he was not a party.”

Also, “Even assuming the guest ride counts as a direct benefit that Carroll accepted under Cheryl’s contract with Uber, Uber’s [equitable estoppel] argument still fails. We have explained that Carroll lacked actual or constructive notice of the terms on which that benefit was being offered, so he did not “knowingly” accept any benefit.”

What Could Uber Do Differently?

In my Internet Law course, I describe a phenomenon of TOS formation “leaks,” where people can reach their desired goal without going through the otherwise mandatory TOS formation process. Uber guests are an example of such a leak in Uber’s TOS formation process.

Uber will always have a problem binding every rider to a TOS (and thus arbitration). If an Uber member requests a ride that includes unrelated individuals, Uber doesn’t know who the additional passengers are or have any direct contact with them sufficient to form a TOS with them. Thus, Uber inevitably has limited arguments to divert non-members into arbitration.

In this respect, Uber is in a better position to bind Uber “Guests.” If Uber gets an order for a guest, it could cancel the ride unless the guest agrees to the TOS, such as requring the guest to reply to its text (as the court says, “Uber, for instance, could require guest riders to confirm receipt of the Terms by responding to its text message”) or clicking through some TOS offer screen before the guest order is confirmed. However, I doubt these options would be very popular. For example, guests may not have a cellphone or may have some infirmity that explains why third parties are handling their affairs.

Alternatively, Uber could put the burden on drivers to ensure that everyone who gets in the car has agreed to Uber’s terms somewhere/somehow.

First, Uber could require everyone ordering a ride to specify the identity of riders and their contact info, and then confirm them like the guest protocol I mentioned above. This would require drivers to then block access to guests who didn’t assent to the TOS. I don’t think anyone would love this solution, including drivers who might face physical threats for denying rides or potentially leave people stranded in dangerous situations.

Second, Uber could put some kind of TOS disclosure on car windows, such as “by entering this vehicle, you agree to the TOS.” (Call it a…window-wrap?). Putting aside the legal dubiousness of a window-wrap, it would require drivers to implement this properly on their cars, and the odds of that are prohibitve. (Also, a car usually has multiple doors, and each one would need the disclosure if the window-wrap were to work against everyone).

In sum, it’s quite possible that Uber may never be able to bind all riders to arbitration. Then again, I don’t recall taxi services in their day routinely being able to bind their riders to arbitration either.

Case Citation: Walker v. Uber Technologies, Inc., No. 24-7154 (D.C. Cir. Aug. 28, 2026)

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Schlueter-Beckner v. SimpliSafe, Inc., No. 25-4933 (9th Cir. Aug. 31, 2026)

SimpliSafe’s TOS formation via a sign-in-wrap failed for lack of visibility. The Ninth Circuit doesn’t show the screen, but the lower court opinion included this:

The Ninth Circuit first explains why it focuses only on the bottom “place order” widget, not the one on the right:

Because the fill-in items that required action and attention from the consumer were all in the left-hand column, the overall design of the page deemphasized the right column and drew focus toward the “Place order” button at the bottom of the left column. This emphasis is reinforced by the fact that the preceding “Shipping” webpage in the purchase process similarly placed the fill-in items on the left-hand side, with a similar blue action button at the bottom. Moreover, SimpliSafe presented no evidence to show that Plaintiffs must have used the “Place order” button on the right-hand side or must have read the disclosure on that side to finalize their purchase. Therefore, any insufficiency with the bottom disclosure—which may have been the only disclosure the user saw—would mean SimpliSafe failed to show its webpage provided reasonably conspicuous notice.

Then, the Ninth Circuit says that the bottom TOS offer isn’t prominent enough:

The disclosure’s placement, font size, and font color drew the user’s attention away from the disclosure. There was significant white space between the disclosure and the “Place order” button; the text of the “Place order” button was seemingly twice the size of the disclosure’s text; and the “Place order” button contrasted more against the white background than the disclosure’s gray text….

Go back and double-check the white space between the TOS offer and acceptance button. Seriously?

The court continues:

Above the bottom disclosure, the purchasing webpage includes a line of text warning users their credit card information would be automatically saved to the account for future use. This warning is in larger font than the disclosure, italicized, and in navy text against the light gray background. As a result of these design choices, the credit card notice contrasts starkly on the page and draws the eye. So, while SimpliSafe utilized design elements to ensure the user saw the warning aboutretaining credit card information, “they have not done the same to alert a consumerto the Terms of Use.”

Would you say that the credit card warning was so much more prominent than the TOS offer?

Some plaintiffs also signed up for alarm monitoring, and that signup process failed too. The TOS offer labeled the TOS “SimpliSafe Terms and Consent to Communicate, for Notifications and Alerts.” The court said that sounds like the TOS only related to SimpliSafe’s messages, not a more comprehensive set of TOS terms.

Also, the TOS offer and acceptance button didn’t match:

the disclosure stated “[b]y submitting this number” Plaintiffs agreed to the terms, but the action button on the webform only stated “Next.” This mismatch of terms could easily confuse users.

As I”ve said before:

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Uhl v. Roblox Corp., No. 25-5057 (9th Cir. Sept. 3, 2026)

Roblox’s TOS contains an arbitration clause but “Roblox did not move to compel arbitration—for months on end.” Roblox claimed it needed to know the plaintiff’s username to determine if the case was arbitrable, but Roblox didn’t seek any discovery to resolve this ambiguity. Instead, it litigated the preliminary stages of the case in court, including a removal motion, a remand, and a substantive motion to dismiss.

This makes it look like Roblox sandbagged the arbitration issue. The majority summarizes:

a party cannot ask the district court to dismiss a complaint on the merits, holding in reserve a claimed right to arbitrate that will be exercised only if it does not like the district court’s decision.

Judge Bumatay (a TAFS judge) dissents, saying the law wasn’t settled or clear that Roblox was waiving its arbitration rights by proceeding as it did.

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