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

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

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

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

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

Direct Infringement

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

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

Vicarious Infringement

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

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

Contributory Infringement

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

Developments Since This Ruling

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

An Observation

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

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

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

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

Direct Infringement

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

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

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

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

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

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

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

Contributory Copyright Infringement

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

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

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

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

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

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

Vicarious Infringement

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

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

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

Statute of Limitations

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

Implications

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

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

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

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

More Blog Posts About Michael Grecco

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

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

* * *

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

Image produced by ChatGPT March 2026

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior Posts on Section 512(f)

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trademark Dilution

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

Trademark Infringement

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

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

False Advertising

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

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

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

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

Publicity Rights

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

First Amendment Defense

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

Section 230

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

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

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

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

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

* * *

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

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

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

Related posts

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

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

Weiss v. Google LLC, 2026 WL 733788 (Cal. App. Ct. March 16, 2026)

Weiss’ business started running financial services ads on Google in 2015. Google suspended the ads multiple times, until Google issued a final suspension in 2024. The court says Section 230 protects Google’s suspension decisions.

The court starts with standard context-setting: “California’s appellate courts and federal courts have also generally interpreted section 230 to confer broad immunity on interactive computer services.”

The court continues:

Weiss seeks to adjudicate Google’s characterization of his business and its decision to suspend its ads. However, this conduct, i.e., Google’s “refusal to allow certain content on its platform,” is “typical publisher conduct protected by section 230” regardless of the reason for that refusal….

even if Google’s characterization of Weiss’s advertisements does not align with Weiss’s characterization, section 230 still affords Google immunity from liability for its decision to suspend his content…

all the content Weiss claims Google wrongfully suspended was admittedly created by Weiss, not Google…

Google’s determination that Weiss’s ads violated its general policies is not equivalent to contributing to the ads’ content.

In a footnote, the court adds: “Weiss seeks to hold Google liable for its enforcement of its own general policies, rather than a breach of a specific promise.”

When the dust settles, this becomes just another failed lawsuit over account terminations and content removals.

A reminder of the content moderation dilemma Google faces here. A few courts have said that Facebook doesn’t qualify for Section 230 protection for running scammy ads (e.g., Forrest v. Facebook). As a result, Google has good reason to suspend Weiss’ ads to manage its own liability exposure. At the same time, if Weiss succeeded with his claims here, then Google would have been potentially liable for removing ads based on Google’s fears that they are scammy. This would force Google to deploy a Goldilocks version of content moderation: Google would have to get its ad removal policy “just right,” with potential liability for mistakes in either direction. An impossible challenge.

Thompson v. The Meet Group, 2026 WL 730134 (E.D. Pa. March 16, 2026)

Thompson said Tagged deactivated his livestreaming account and stole $10k from him.

For reasons that aren’t obvious to me, Tagged defended on Section 230(c)(2)(A) grounds instead of 230(c)(1). Maybe this has something to do with trying to navigate around the abysmal Anderson v. TikTok case? EDPa courts are bound by that decision.

The court says Tagged can’t establish the 230(c)(2)(A) defense elements on a motion to dismiss: “application of CDA immunity in this case requires assessment of facts that are not in the pleadings—such as the reason why Thompson’s account was disabled and the content of Thompson’s posts.” Also, Thompson’s allegations of theft might defeat 230(c)(2)(A)’s good faith prerequisite. Cites to Smith v. TRUSTe and e-ventures v. Google.

No matter, the case fails anyway. (Another example of Section 230 not being the only reason why lawsuits lose). The court says the plaintiff had no property interest in his social media account that could be converted (cite to Eagle v. Morgan). The plaintiff’s TOS breach claim fails multiple ways, including the TOS’s reservation of termination rights and damages waiver.

So this becomes yet another failed lawsuit over account terminations, just not due to Section 230. You already know this, but if you’re a defendant in these cases, you should be focusing on 230(c)(1), not 230(c)(2)(A).

Gehringer v. Ancestry.com Operations Inc., 2026 WL 734526 (N.D. Cal. March 16, 2026)

Plaintiffs are individuals who have not subscribed to the Ancestry.com service and have not consented to the use of their name or photograph. They allege Ancestry not only includes their yearbook information on a searchable database, but also utilizes their likenesses as part of advertisements for Ancestry.com services…

Plaintiffs contend Ancestry used their likeness in three forms of “advertising”: 1) publication of the yearbook information on a database that contains a paywall for certain features; 2) dissemination of emails to potential Ancestry.com subscribers, noting Ancestry Hints® can expand their family tree, and using the names and images of Plaintiffs as examples; and 3) an Ancestry free trial program that allows potential subscribers to access Plaintiffs’ yearbook information for a limited time.

The court nixes claims over category #1 and #3 ads due to copyright preemption.

As for the category #2 ads:

Plaintiffs allege Ancestry crafted email advertisements that included their likenesses to encourage potential customers to subscribe to Ancestry’s service. The email advertisements were not created by a third-party user of Ancestry.com—Ancestry authored the content, and as such, it is “responsible, in whole or in part, for the creation” of that offending content. To avoid this conclusion, Ancestry attempts to recast the allegations in the First Amended Complaint, asserting Ancestry merely “republish[es] yearbook photos taken and first published by Esperanza High School.” But as the screenshots in the Complaint confirm, the emails sent by Ancestry to prospective users include far more than republished images of Plaintiffs; they incorporate those images into an advertisement for the Ancestry Hints® functionality and Ancestry’s subscription service. Drawing all inferences in Plaintiffs’ favor, Section 230 does not immunize Ancestry against liability for the content of the alleged email advertisements

Notice that Ancestry’s ad creation practices go further than Facebook’s sponsored stories, which also didn’t qualify for Section 230 protection.

State v. Sharak, 2026 WI 4 (Wis. Supreme Ct. Feb. 24, 2026)

Google scanned Sharak’s Google Photo uploads, identified what it thought was CSAM, and submitted a CyberTip. Sharak argued that Google was conducting the search on the state’s behalf. The court disagrees and upholds Sharak’s conviction.

That isn’t unusual. What’s more unusual is the court’s discussion of Section 230. “Rauch Sharak argues that [Section 230(c)(2)’s safe harbor] encourages ESPs to scan for CSAM by granting immunity to ESPs that moderate content and creating civil and criminal liability if ESPs do not scan for CSAM.”

The court responds:

Though § 230(c) may grant immunity to ESPs that choose to scan for CSAM, it does not require, reward, or incentivize scanning for CSAM in the first place. Moreover, § 230(c)(2)(A) grants immunity for “any action voluntarily taken in good faith to restrict access to” obscene material, which sweeps far more broadly than would be required to induce Google’s CSAM scan at issue here….

Even if the statutes encourage Google to scan for CSAM or provide a law-enforcement purpose, Rauch Sharak has not shown that they are enough to turn Google into an instrument or agent of the government.

Alice Rosenblum v. Passes Inc., 2026 WL 711837 (C.D. Cal. Feb. 3, 2026)

[The fact allegations are based on the court’s summary of the complaint.] Passes is a competitor to OnlyFans. Unlike its rivals, Passes allows 15-17 year olds to create accounts with parental consent. Guo is the CEO, and Celestin is a content acquisition specialist. At Guo’s direction, Celestin personally reached out to 17-year-old Alice Rosenblum to create a Passes account. Celestin did a photoshoot of Rosenblum and (with Guo’s help) created a Passes account for her without requiring parental consent.

“Over the next month, while Plaintiff was still 17 years old, Celestin and Ginoza [another Passes employee] allegedly directed Plaintiff to create sexually explicit images and videos of herself….the FAC provides over 14 examples of child sexual abuse material (“CSAM”) involving Plaintiff, being marketed on the Passes platform for $69 to $4,000. Furthermore, Passes agents posing as Plaintiff allegedly communicated via direct message to “big spenders” to continue to market and sell CSAM involving Plaintiff.”

The court rejects Passes’ and Guo’s Section 230 defense:

Section 230 immunity plainly does not apply to Plaintiff’s claims. To be sure, Plaintiff does largely seek to hold Passes Defendants liable as providers of an interactive computer service, and several allegations treat Passes as a publisher, as they involve Passes’ distribution of CSAM involving Plaintiff…Plaintiff alleges that Passes and its agents were directly responsible for the creation and portrayal of the CSAM on the Passes platform: Plaintiff alleges that Celestin, acting as an agent of Passes, personally took at least one photo of Plaintiff which was uploaded to Passes, and further instructed her to create specific photographs and videos and upload them to Passes, which he later marketed under specific captions and sold. Plaintiff further alleges that Passes itself hosted a banner featuring a sexually explicit photo of Plaintiff, which marketed CSAM involving Plaintiff. Plaintiff therefore seeks to hold Passes liable for harm allegedly arising out of its own creation of harmful content.

Passes claimed that Celestin and Ginoza were third parties, but “As alleged, Celestin was
not merely another third-party user of Passes; rather, he acted as an agent and employee of Passes.” Cite to Quinteros.

The court summarizes:

Section 230 immunity does not apply to Passes, a platform which has allegedly, through its agents, deliberately created, marketed, and sold illegal content, acting as an “information content provider” that uses its own “interactive computer service.”

In a footnote, the court adds regarding Guo: “Plaintiff’s allegation that Guo encouraged Plaintiff over the phone to post content, which supports Plaintiff’s claims for IIED and California Civil Code § 52.5, does not hold Guo accountable for Passes’ publishing activity.”

Doe v. X Corp., 2026 WL 772384 (N.D. Tex. Feb. 25, 2026)

“A third party copied commercial pornographic content from Plaintiff’s OnlyFans and studio-based productions and uploaded it to X without his consent, violating the OnlyFans terms and conditions and the studios’ licensing agreements.” He sued pursuant to 15 U.S.C. § 6851(b)(1)(A), a private right of action for nonconsensual production of intimate visual imagery. Doe produced the porn consensually, but he claims the restrictions extended to nonconsensual distribution.

The court says X qualifies for Section 230. Doe responded that he owned the IP in the works, so the IP exception applies. The court says:

The [IP] exception applies only when the claims arise from a law directly implicating intellectual property rights, not merely when intellectual property is involved in the claim. And the statute under which Plaintiff sues—§ 6851—is not an intellectual property law. Rather, it is concerned with “whether the depicted individual consented to a specific disclosure of an intimate visual depiction—regardless who holds the copyright to the image.” Thus, § 6851 creates a privacy-based tort right of action, not an intellectual-property based one.

The boundary between privacy and IP laws remains amorphous–increasingly so with all of the concerns about “deepfakes,” “virtual replicas,” and other AI-related regulations that use privacy framing to create what look like sui generis IP rights. This could be a good student paper topic.

For more discussion of the IP exception to Section 230, see this article.

Teague v. Google, 2026 WL 746996 (D. S.D. March 17, 2026)

Plaintiff claims Google committed defamation based upon the fact that “people think I raped [redacted]. This case (sic) been dismissed in 2021 but it still show (sic) on Google and caused me to (sic) threaten and attacked a few times.” Plaintiff further claims his image is on Google and it is difficult to get a job because the rape charges still appear on Google.”…

Google is not a “publisher or speaker” under the CDA and therefore “cannot be liable under any state-law theory to the persons harmed by the allegedly defamatory material.”

Google is immune from suit for defamation claims arising out of other content providers’ posts on the internet.

The post Section 230’s Application to Account Terminations, CSAM, and More appeared first on Technology & Marketing Law Blog.

Snap, Inc. v. Eighth Judicial District, 2026 WL 501564 (Nev. Supreme Ct. Feb. 23, 2026)

Related blog post about a Nevada Supreme Court ruling involving TikTok. Nevada alleges Snap harms users by addicting them. The court seemed quite comfortable with results-driven reasoning. This opinion read like the kind of Internet Law final exam student answer that gets a B- or C+.

Personal jurisdiction

The court seemed to hew pretty closely to the (uncited) Briskin ruling:

According to the State, Snap enters into contracts with each Nevada user through its terms of service, receives consent to collect each user’s personal data, then packages such data when it sells advertisement space that can target specific cities in Nevada and/or Nevada residents. Based on Snap’s business model, it has a strong interest in keeping users on its app for long periods of time—thereby supporting the State’s theory that Snap is purposefully designed to addict its users….

Snap enters into contractual agreements with its Nevada users through its terms of service, creates “communities” for Nevada students to engage with each other, advertises in the forum state, and collects user data to generate ad revenue….

Snap’s collection of user data and advertisement sales in Nevada establishes a pervasive presence that sufficiently relates to the underlying litigation, aimed at punishing Snap for negligently creating an addictive platform aimed at boosting its ad revenue.

First Amendment

While Moody disallows liability for the exercise of editorial functions, Snap fails to demonstrate how the State’s complaint only highlights such editorial functions to support its theory that Snap’s app was negligently designed to cultivate addiction in its younger users….

The State disavows any intent to impose such age verification or parental functions by means of its complaint. In looking to the complaint and its structure, the State points to the age verification and parental controls that Snap currently has in order to provide context for how Snap has negligently designed its app to be harmful to young users, not an attempted restriction on free speech…

the complaint describes the harm children have suffered as a result of Snap’s app and showcases the knowledge Snap had about the harm it continues to inflict on its users. At this point in the litigation, it cannot be said that the State seeks to compel speech from Snap

The court’s age authentication sleight-of-hand is dirty. Nevada claims it’s not requiring age authentication, but that Snap implemented age authentication incorrectly. Is there really a difference? If the state can base a negligence claims on its disapproval of a service’s age authentication, the state controls the service’s implementation.

Section 230

Consistent with its similar TikTok ruling, the court says it won’t evaluate Section 230 feature-by-feature.

Huh? Of course Section 230 should apply feature-by-feature. The California federal and state court social media addiction rulings spent many dozens of pages doing just that. The court here prefers to speak in generalities rather than specifics because….? The only substantive justification I could see is that it permitted the court to categorically reject 230’s application when otherwise it would have partially applied. Dirty.

This leads to another dirty move by the court:

here it appears that the features highlighted in the State’s complaint provide context for its claims—that Snap misrepresented the harm its app can cause to its younger users. It does not appear that the State seeks to hold Snap liable for third-party content—thereby taking the underlying complaints outside of Section 230 immunity

The court reductively oversimplified/overgeneralized Nevada’s claims to reach this summary of the claims. This nove allows the court to sidestep Snap’s many arguments that show how third-party content is very much at issue in the case.

Hartford Casualty Insurance Co. v. Instagram LLC, 2026 WL 560349 (Del. Superior Ct. Feb. 27, 2026)

I know insurance coverage disputes sound uninteresting, but they can be pretty spicy. TL;DR: Meta tendered its two California social media addiction lawsuit defenses to its insurers. The court says the insurers have no duty to defend, so Meta will have to bear the tens (hundreds?) of millions of defense costs as well as any damages awards.

Facebook argues that the insurance companies (there are multiple insurance companies involved, and some are finger-pointing at each other) ganged up on Facebook and forced Facebook to take positions in this coverage dispute that conflict with its positions in the underlying litigation. The court is unperturbed:

the conduct alleged in the Social Media Litigation—even when viewed through the lens of negligence—describes deliberate acts rather than accidents under the policies. Because the Court’s determination regarding Meta’s intent is based strictly on the face of the underlying complaints, it does not “overlap” with the factual truth of the allegations to be litigated in California.

Substantively, the insurance policies cover an “occurrence,” which all parties agree means an “accident.” The court says an accident is “an unexpected, unforeseen, or undesigned happening or consequence from either a known or unknown cause.” But “[a]n accident does not occur when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.”

The court says:

Because Meta’s platform design choices—as alleged—were voluntary business decisions aimed at increasing engagement, they fall squarely within this broad definition of deliberate conduct….

Meta concedes that the plaintiffs allege these choices were made to “maximize engagement.” It is therefore unassailable that the complaints allege that Meta’s conduct was a purposeful effort to operate and maximize its platforms.

Given the financial stakes and the ambiguities of the law, this ruling surely will be appealed.

Breathitt County School District v. Meta Platforms, Inc., 4:22-md-03047-YGR (N.D. Cal. Feb. 9, 2026)

In the federal MDL, the social media defendants moved for summary judgment on some of the school districts’ claims. It doesn’t work.

Among its many rulings, the court again rejects the Section 230 defense:

The Court’s MTD order already established that certain platform design choices—the Actionable Defects—are sufficiently independent from content to avoid Section 230. Here, Breathitt provides deposition, documentary, and expert opinion evidence that each defendant’s platforms contained Actionable Defects which engender compulsive use. Breathitt also offers evidence specific to the district, including expert opinion and individual testimony, describing how social media use affects students within the school environment. Finally, Breathitt proffers affidavit and survey evidence linking students’ social media use to hard costs and opportunity costs incurred by the district. This evidentiary showing, as further outlined below, creates a triable issue of fact as to each of the Actionable Defects. The issue of evidence regarding the barred features is largely one of admissibility under Federal Rule of Evidence 403, not a basis for summary judgment

The post Catching Up on Some Social Media Addiction Rulings appeared first on Technology & Marketing Law Blog.

asserts that Google’s spam filter failed to block abusive, spoofed, and spam emails from reaching her Gmail account. She says that reading these emails caused her emotional distress, and although she does not allege that the emails ever reached anyone else but her, she contends that they somehow damaged her reputation and disrupted her “professional communications and ongoing federal litigation.”

She sued Google for negligence, emotional distress, and something she calls “platform harm.” Yes, this is a pro se/IFP lawsuit. Unsurprisingly, it fails (multiple ways).

Section 230. The court says:

All the plaintiff’s claims are fundamentally based on her assertion that the defendant allowed certain unwanted messages through Gmail’s spam filters. Because she seeks to hold the defendant liable for its decisions related to monitoring and screening of emails, her claims “fall squarely within the exercise of a publisher’s role” and are “therefore subject to Section 230’s broad immunity.” [cite to Ynfante v. Google.] Finally, the emails in question came from an information content provider distinct from the defendant. The plaintiff does not allege that the defendant is the creator or developer of any of these emails.

Dor is suing Gmail for doing too little spam filtering. The court responds that spam filtering is the exercise of editorial discretion. This is an implicit but emphatic rejection of the must-carry obligations baked into arguments that email should be regulated like common carriage.

Then again, you can see how spam filters can’t win with  plaintiffs. Dor thinks there is too little filtering. The RNC thought Gmail did too much filtering. Spam filters could manage their liability only if, like Goldilocks, they got it just right. Otherwise, someone on one side or the other would rip them to shreds in court if the law allowed them to do so.

Prima Facie Case

The court alternatively dismisses the case for failure of the prima facie elements. Once again, Section 230 reform would not change the outcome of this case.

Negligence: “there is no indication that the defendant had a “special relationship
of custody or control” with the plaintiff. In addition, her claimed harms—emotional distress, reputational damage, and disruption of her communications—are attenuated from what the defendant is claimed to have done here, such that a reasonable person would not anticipate that the claimed harms were likely to result.” To be fair, it’s entirely foreseeable that an email address will receive crap spam. A reasonable person, however, doesn’t read the spam or, if they do, believe it to be true.

Emotional distress: “the plaintiff’s complaint alleges that the defendant failed to filter out certain emails, and those emails were distressing when she read them. The foreseeability element of both the intentional and negligent forms of emotional distress is lacking, because the defendant could not have plausibly foreseen that she would receive these emails from unknown third parties, and that she would be severely emotionally distressed by receiving them.”

“Platform Harm” (which the court interprets as a defamation claim): “The plaintiff does not allege that the defendant published a defamatory statement to a third party. Based on her complaint, the only person to receive the emails was herself.”

Implications

I wasn’t sure why this lawsuit got filed. Was it because Dor actually read her spam emails and thought they meant something? If so, this legal dilemma might be simply fixed with a short tutorial on how to manage spam emails.

I remind younger readers that spam used to be one of the top 3 Internet Law issues around a quarter-century ago. See my 2004 essay on the topic. We almost never see spam-related lawsuits nowadays. I think this reflects how improved spam filtering has ameliorated the issue to the point where spam is a minor nuisance. Notice how if this lawsuit succeeded (which it never had a chance of doing), holding spam filters liable for what they missed would make it impossible to offer spam filters at all.

Case Citation: Dor v. Google LLC, 2026 U.S. Dist. LEXIS 32957 (D. Conn. Feb. 13, 2026)

BONUS: Norton v. Turrentine, 2026 WL 687094 (N.D.Miss. March 11, 2026): “Given that Meta is an interactive service provider, the content at issue was provided by someone other than Meta, and the Plaintiff seeks to hold Meta liable for its purported exercise of a publisher’s traditional editorial functions (deciding whether to publish, withdraw, postpone, or alter content), it is clear Section 230 serves to bar the Plaintiff’s claims.”

Prior Blog Posts on Common Carriage

• Google Search Isn’t a Common Carrier–Richards v. Google
• Ninth Circuit Deletes RNC’s Lawsuit Over Gmail’s Spam Filter–RNC v. Google
• Google Search Isn’t a “Common Carrier” (DUH)–Ohio v. Google
• Court Blows Up Gmail’s Section 230 Protection, But Allegations of Biased Spam Filtering Still Fail–Republican National Committee v. Google
• Statement on the Supreme Court’s Ruling in Moody v. NetChoice
• Section 230 Protects Gmail’s Spam Filter–RNC v. Google
• Is Google’s Search Engine a “Common Carrier”? (Seriously???)–Ohio ex rel Yost v. Google
• Big Ruling for Free Speech: Most of Florida’s Social Media Censorship Law (SB 7072) Remains Enjoined–NetChoice v. Attorney General
• Texas and Its Amici Try to Justify Censorship in Their NetChoice v. Paxton Fifth Circuit Briefs
• Court Enjoins Texas’ Attempt to Censor Social Media, and the Opinion Is a Major Development in Internet Law–NetChoice v. Paxton
• Anti-Zionist Loses Lawsuit Over Social Media Account Suspensions–Martillo v. Facebook
• Texas Enacts Social Media Censorship Law to Benefit Anti-Vaxxers & Spammers
• 31 Bogus Passages from Florida’s Defense of Its Censorship Law–NetChoice v. Moody
• Florida Hits a New Censorial Low in Internet Regulation (Comments on SB 7072)
• Deconstructing Justice Thomas’ Pro-Censorship Statement in Knight First Amendment v. Trump
• Facebook Defeats Lawsuit Over Alleged ‘Shadowbanning’–De Souza Millan v. Facebook
• Are Social Media Services “State Actors” or “Common Carriers”?

The post Section 230 Preempts Lawsuit Over Unwanted Gmail Spam–Dor v. Google appeared first on Technology & Marketing Law Blog.

You can imagine my surprise when Scribd emailed me in early February 2026, saying that one of my uploads had been taken down due to a DMCA takedown notice. Even more shocking was the removed file, “Amaretto v Ozimals Preliminary Injunction,” which I uploaded in early January 2011. (If you don’t remember that case, it was the super-interesting dispute between the Second Life virtual horses and virtual bunnies). Why is a 15-year-old upload getting DMCAed now?

And this file in particular! Federal court documents aren’t eligible for copyright protection per 17 USC 105, so I felt certain that my upload was in the public domain and didn’t infringe anyone’s copyright. I found Scribd’s counternotification procedure (they didn’t direct-link to it in their notification to me) and submitted a 512(g) counternotification.

The next day, I got another notice from Scribd saying that my content was taken down due to a DMCA takedown notice. I couldn’t tell if this was a new takedown request or more details about the one Scribd already effectuated. The targeted URLs in the takedown notice related to education materials, but buried in the list of dozens of targeted URLs was my upload:

The DMCA notice purportedly “identified” the copyrighted works that I allegedly infringed:

Users on [Scribd] have uploaded The Daring English Teacher, Inc. resources. These materials can be found here: https://www.teacherspayteachers.com/Store/The-Daring-English-Teacher.

My involvement in this DMCA notice made no sense. I posted a federal court document. What does that have to do with teaching resources?

It appears there are 863 paywalled items available at the identified URL, so I did not try to confirm if the preliminary injunction was somehow embedded in any of them. That seems extremely unlikely given the niche-y nature of this particular court document.

[Query: 512(c)(3) says the notice must identify “the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.” Does a notice indiscriminately pointing to a URL enumerating 863 paywalled items satisfy this requirement?]

Plus, even if an identified work contained a copy of the preliminary injunction, it’s in the public domain. It does not appear that Scribd invested any effort to address the notice’s very obvious public domain problem.

In response to my counternotification, Scribd replied to me:

We are in receipt of your DMCA counter-notification. We appreciate your patience as we notify the complaining party and await their response. The complainant has a maximum of fourteen (14) business days to:

• rescind the original notification,
• ignore the counter-notification, or
• notify Scribd of their intent to pursue further legal action.

We are prohibited from displaying or restoring the content until the matter is resolved. We can restore the content only if the complainant rescinds the original notification, or after 14 days if the complainant fails to respond.

Say what??? This procedure is a pastiche of 512(g) concepts that deviate from 512(g) in important ways:

• Scribd’s response says “We are prohibited from displaying or restoring the content until the matter is resolved.” WRONG. 512(g) says that the service MUST restore the file in 10-14 business days of my counternotice UNLESS the copyright owner has filed a lawsuit.
• Scribd’s response says “We can restore the content only if the complainant rescinds the original notification, or after 14 days if the complainant fails to respond.” WRONG. Scribd MUST restore the content NO MATTER WHAT the complainant tells Scribd–other than the copyright owner saying it has filed suit. Scribd’s procedures say that if the complainant responds to Scribd but doesn’t rescind the notice, then Scribd will not restore the content. That’s not what 512(g) says.
• The response says the complainant can “notify Scribd of their intent to pursue further legal action.” Why? The complainant’s declared intent is irrelevant to 512(g). Per 512(g), within the 14 business day window, the complainant can block the restoration ONLY if the complainant “has filed an action seeking a court order to restrain the subscriber.”

Of course, Scribd can choose to forego its eligibility for 512(g)’s safe harbor. Many services make that choice because uploaders don’t have many tenable claims that 512(g) could apply to. Based on the procedures Scribd has adopted, I think Scribd has chosen to forego 512(g). I wonder, however, if they intended to do so, or if this was just a sloppy or thoughtless implementation of DMCA procedures.

Ten days after the initial takedown, I received an email from Rachel Andruczyk, the copyright agent (apparently not the copyright owner) who submitted the DMCA takedown notice governing the Daring English Teacher. (Rachel appears 12 times in the Lumen database). She wrote me:

Since Scribd has temporarily removed access, I cannot see the material.  Several URLs were reported in this notice and there is a chance that one was captured in error.  I would be happy to retract the notice if you could please just send me an image of the material in question so that I can identify it one way or another.

I replied:

It sounds like you don’t know how to use the Wayback Machine?

You can see it here: https://web.archive.org/web/20110130221240/https://www.scribd.com/doc/47037695/Amaretto-v-Ozimals-Preliminary-Injunction

To speed things up, I have included a PDF from the Wayback Machine.

She replied:

I have already sent the retraction notice to Scribd and it should be restored shortly.

I replied:

Thank you, but I remain confused how the error occurred in the first place. Could you please help me understand?

She replied:

I work for several authors to find and remove copyright infringements.  This involves entering their watermarks, key words, names, etc.  Line by line, I am scanning and reporting.  Somewhere in the URL with the content belonging to you, there must have been some commonality in the search terms.  I am human and most likely clicked a line above or below the intended target in the list. This is an extremely rare occurrence in all the years I have been doing this.  Once again, I apologize.

Say what? “I am human and most likely clicked a line above or below the intended target in the list.” Seriously, sloppy mousing is the purported reason why a public domain document got knocked off the Internet? There is no “oops” excuse for sending wrong DMCA takedown notices. 512(c)(3) notifications are powerful legal tools. They need to be accurate. This notice wasn’t.

Now, if you’re a long-time reader, I know what you’re thinking. We already know that 512 is a cesspool of bogus takedown notices that 512(f) has failed to curb. This particular incident is at most a mildly interesting example demonstrating those well-understood phenomena. Fair enough.

Still, I think my experience highlights a few details about the collapse of the 512 notice-and-takedown bargain. Some of the possible lessons:

• takedown notice senders don’t care if their notices are accurate or not, and many senders don’t have adequate QA processes to prevent obvious errors.
• most uploaders would not have counter-noticed in this circumstance. The typical uploader wouldn’t have the same degree of confidence I have about 17 USC 105 or 17 USC 512(g) to push back. So the takedown notice and resulting removal are almost always going to be dispositive for targeted uploads.
• 512(f) is worthless. Could I sue Rachel Andruczyk for her self-admitted error? Per Rossi, to survive a motion to dismiss, my claim probably would need more damning proof of her subjective intent. “Mere” dereliction may not be enough.
• takedown notice senders can get their takedown notices honored even if they only make indeterminate gestures towards the copyrights they purport to represent.
• Scribd was thinking about going public at a $1B valuation, so it’s not a small company. Yet its DMCA procedures are clearly not industrial-grade, especially its garbled implementation of 512(g). Smaller and less well-funded services have even worse DMCA practices.
• most people already assume that services essentially automatically remove content in response to takedown notices, no questions asked. This removal of public domain material fits that stereotype.
• more generally, in the triangle of copyright owner-service-uploader, the service will almost always side with the copyright owner over the uploader. Scribd did not protect my interests as an uploader, despite the obvious merit of my position and Scribd’s 15 year history with this item.
• as a result, be careful entrusting any uploads you care about to third-party UGC services. The only true way to be in control of your online fate is at a website and servers you operate and control.

(I’ll note that SCU has removed some of my uploads of court filings to the SCU Digital Commons in response to plaintiff complaints that they don’t want their litigation antics so visible. At this point, if I really care about keeping files online, I host them at my website. Even then, my web host has been targeted based on my uploads. It’s a rough world out there for uploaders, regardless of their carefulness and expertise).

To close the story, 10 days after the initial takedown, Scribd replied to me:

The DMCA notification that resulted in removal of your content was rescinded by the complainant. Your documents were restored (along with likes, view counts, and other metrics) to their original links. The complainant’s action renders the counter-notification moot and so we consider this matter closed.

The matter involving this particular upload may be closed in Scribd’s mind, but everything else raised by this blog post remains very much open.

A reminder of my short essay, “How the DMCA’s Online Copyright Safe Harbor Failed.”

* * *

Scribd’s comms department sent me the following comments in response to a draft of this post I sent them:

Scribd complies with applicable copyright laws, including the DMCA. We respect the rights of copyright holders and have established processes for reviewing and responding to copyright infringement. When we receive a valid DMCA notification, we remove the identified content.

The DMCA framework anticipates that mistakes can occur and provides a process for correction. In this case, that process led to the restoration of the material.

More details about Scribd’s copyright policies are available here.

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