This case was part of a broad-based copyright owner litigation campaign that included Viacom v. YouTube and UMG v. Veoh. All of these lawsuits were designed to permanently shut down the video hosting category by finding a hole in the Section 512(c) online safe harbor so that copyright owners could sue UGC sites even if they didn’t send individual takedown notices. YouTube settled, Veoh went broke, and Vimeo soldiered on (and on and on…).

In January 2025, Vimeo scored a major win in the Second Circuit. When the dust settled, the court summarizes: “Vimeo ultimately achieved complete victory on all of Plaintiffs’ claims after many long, hard-fought years spent litigating this dispute.”

Vimeo sought a 505 attorneys’ fee shift for its $6 million in defense costs over 17 years. The court denies the request, but awards it a token $16,000 in costs.

The court summarizes its thinking:

As Vimeo itself has previously recognized, this case raised “many difficult or new” issues….An award of attorneys’ fees to Vimeo, however, would not serve the purposes of the Copyright Act. Plaintiffs asserted reasonable claims that raised novel, complex questions of law, and they litigated those claims reasonably and in good faith. This case also presents little need for either compensation or deterrence.

What were those novel issues?

This case raised many issues of first impression, including, but not limited to, the legal framework governing when a service provider is deemed to have actual or constructive (also called “red flag”) knowledge of infringement, the circumstances in which willful blindness is a proxy for knowledge, the factual showing necessary for a plaintiff to establish the foregoing, and whether the DMCA’s safe harbor provisions applied to sound recordings fixed prior to February 15, 1972.

Those issues felt more novel back in 2009. The court acknowledges the case’s venerability, saying:

the legal standards governing, and the factual showing required to receive, DMCA safe harbor protection had not been addressed by the Second Circuit when Plaintiffs filed suit in 2009….

Even following Viacom, the evidentiary showing necessary to present or defeat a safe-harbor defense under the DMCA was not settled law, particularly with respect to the question of actual or red flag knowledge of infringement.

Vimeo pointed out that the record labels could have avoided this case entirely by sending proper 512(c)(3) takedown notices. The court is unmoved:

there is no statutory requirement that a plaintiff exhaust its notice-and-takedown remedies against a defendant before bringing suit under the Copyright Act….

As the Second Circuit noted, the notice-and-takedown provisions merely “augment[ed] the arsenal of copyright owners” by creating an alternative remedy. And because the limitation on liability conferred by the DMCA is qualified, rather than absolute, there remains a place for good-faith lawsuits under the Copyright Act to test whether a service provider is entitled to that immunity. From a rightsholder’s perspective, the two remedies are far from the same: unlike a claim brought under the Copyright Act, a DMCA takedown notice does not provide a rightsholder with monetary relief for past infringement or injunctive relief against future infringement, both of which Plaintiffs sought in this action. Penalizing a rightsholder for seeking a remedy available to it under the Copyright Act—without an exhaustion requirement—would not serve the Act’s purposes.

The court did award Vimeo $16k in costs because it prevailed in the most recent Second Circuit appeal.

* * *

Did the record labels really have colorable arguments when they first filed this lawsuit? Well, yes, in the sense that the DMCA is a long and complicated safe harbor filled with ambiguities. Major copyright owners planned to test all of the ambiguities–and are still working on that agenda nearly 30 years later.

However, the copyright owners’ real agenda was never to clarify the ambiguities in good faith. Instead, their goal is, and always was, to tacitly amend the DMCA safe harbor in court to secure terms they did not and could not get from Congress via legislative deal-making–most notably, to let copyright owners bypass the DMCA’s central notice-and-takedown architecture so that they could sue UGC services over user-caused copyright infringement without sending individual takedown notices. The copyright owners have been willing to risk many millions of dollars to obtain that backdoor amendment in court, and they really don’t care about the consequences for the defendants they steamroller or bankrupt in the process. To me, this is exactly why a 505 fee shift would have been the only fair outcome here. If the copyright owners are going to gamble some of their fortune on securing legislative amendments via impact litigation, they should bear the full costs of that strategy.

Instead, the fee shift denial implicitly legitimizes the copyright owners’ lawfare strategy against the DMCA online safe harbors. There is surely one or more lessons about the proper design of immunities and safe harbors buried in this case study somewhere.

Case Citation: Capitol Records, LLC v. Vimeo, LLC, 2026 WL 2606633 (S.D.N.Y. Sept. 3, 2026)

The post After $6M and 17 Years Fighting the Record Labels’ Copyright Lawfare, the Court Awards Vimeo $16k in Costs–Capitol Records v. Vimeo appeared first on Technology & Marketing Law Blog.

This is a defamation case between a professor and a student in the Emory School of Medicine. It is one of the countless lawsuits related to the Gaza war, Palestinian rights, and Zionism/anti-Zionism.

In this case, the student publicly and repreatedly criticized the professor for serving in the Israel Defense Forces (IDF), and in response the school suspended her. Her suspension became a cause celebre. Separately, the professor sued her and several outlets that amplified her remarks. It is a major proxy battle over its highly charged topics; about two dozen lawyers are litigating some aspect of this case.

This post focuses on one corner of that larger litigation endeavor. Two defendants, CAIR Georgia and CAIR Foundation, used the Instagram Collabs feature to jointly post allegedly defamatory content involving the student’s story. Instagram describes the Collabs feature:

Instagram Collabs allow you to co-author posts with other accounts, sharing the post with both sets of followers and listing both accounts as authors. To create one, tap Tag people and then Invite collaborator before publishing your post; the invited user must then accept the invite via their messages to be added.

CAIR Foundation claimed that Section 230 protected it from liability for the collaborated post with CAIR Georgia. The court disagrees:

it is apparent from the face of the Second Amended Complaint that CAIR Foundation served as a co-author of the IG Post and therefore cannot be considered a benign user under the CDA.

(I’m not sure the “benign user” term improves the Section 230 jurisprudence, but it might make a good band name).

The court describes Section 230’s limits:

It is true that CDA immunity generally applies to reposting content, as many courts have concluded that private individuals reposting are “users.” See, e.g., Life Mastery Network LLC v. Haygarth, 2026 WL 1622887, at *15-16 (D. Haw. May 22, 2026) (collecting cases). But the CDA does not immunize someone who posts original content, so “it makes sense that adding comments to something that is re-posted would not trigger CDA immunity.” As the Plaintiff pleads it, CAIR Foundation did not simply reshare the WSB-TV segment, nor was it just a tagged user in CAIR Georgia’s post. Instead, it co-authored and published a post to its own Instagram page. Even assuming, as CAIR Foundation alleges, that it did not contribute to authoring the post, it at minimum accepted the collaboration invitation from CAIR Georgia knowing it would be tagged as a collaborator with the post published on its own Instagram profile. Moreover, the IG Post did not “merely share” the WSB-TV segment, but included additional commentary in the caption, with comments from CAIR Georgia on the post sharing links.

These factual allegations are enough to overcome a Section 230 defense now. The court says “a jury could find that CAIR Foundation was responsible in part for the creation or development of the IG Post, including the added commentary.”

* * *

I don’t use Instagram, so this is my first time encountering the Collabs feature (though I’ve occasionally experimented with analogous functionality on other services). It makes me wonder how extensively the Collabs tool is used. I did find one other case mentioning the Collabs tool: Kennedy v. Prime Hydration, LLC, 2026 WL 2018652 (W.D. Ky. July 13, 2026) (the facts are too complicated to cover here). However, I did a search in Westlaw’s Law Reviews and Journals database and found only one mention of Instagram Collabs in that literature (in the footnotes of a 2025 student note). Given the novelty of the Collabs angle, I think this case breaks some new ground.

At the same time, this is a reimagining of the issues I was trying to cover in my Co-Blogging Law paper from over 20 years ago. The Internet enables new forms of joint or collaborative content creation and dissemination that overlay existing legal doctrines. In that paper, I wrote: “The law inevitably will blindside some of these co-bloggers. Bloggers may find unexpected liability for their co-bloggers’ posts or actions.” Here, the court says that CAIR Foundation may become a co-author of the Instagram post (at least for defamation purposes), even if CAIR Foundation did nothing other than accept the Collabs invitation and allow CAIR Georgia’s content to reach its audience. In that circumstance, Section 230 steps aside for the co-authored components, whether CAIR Foundation expected it or not. If you are considering using a Collabs functionality, be aware of these risks.

Still, I think Section 230 continues to cast a long shadow on the plaintiff’s allegations. Even though the Collabs feature presents the defendants as co-authors, they might still not be liable for each other’s contributions. It’s analogous to how an online publisher can extensively edit a third-party’s work and, per Section 230, still not become liable for the parts the publisher didn’t edit. In other words, the public-facing co-author characterization doesn’t end the inquiry.Thus, regardless of the labeling, the plaintiff will need to show that CAIR Foundation contributed to the creation or development of defamatory content. That kind of factual inquiry sounds like a typical jury question.

Case Citation: Winer v. Mohammad, 2026 WL 2523973 (N.D. Ga. August 26, 2026)

The post Collaborators Using the ‘Instagram Collabs’ Feature May Forego a Section 230 Defense–Winer v. Mohammed appeared first on Technology & Marketing Law Blog.

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

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

* * *

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

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

Citing Doe 1 v. Meta, the court says:

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

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

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

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

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

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

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

* * *

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

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

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

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

Judge Wise continues:

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

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

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

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

The post Apple Defeats Liability for Not Scanning iCloud Items for CSAM, But the Judge Was Not Pleased–Amy v. Apple appeared first on Technology & Marketing Law Blog.

Contributory Infringement

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

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

Vicarious Infringement

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

Did Cox Make a Difference?

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

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

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

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

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

UPDATE: Lee v. SBS Corp., 2026 WL 2261023 (C.D. Cal. Aug. 5, 2026). The court granted Google/YouTube’s motion to dismiss.

Plaintiff alleges no act of direct infringement attributable to Google aside from that “the YouTube platform [is] operated by” Google and YouTube. Moreover, Plaintiff does not allege that YouTube selected infringing works for upload or download or instigated any copying, storage, or distribution of the works….

Plaintiff does not allege that YouTube induced infringement or that YouTube provided a service tailored to infringement. Rather, Plaintiff merely alleges that Google and YouTube “selective[ly] remov[ed]” infringing video content on its platform. Plaintiff has not alleged that Google and YouTube actively encouraged infringement through specific acts, such as by advertising an infringing use of its services. Nor has Plaintiff alleged facts giving rise to an inference that the principal object of YouTube’s online platform is the distribution of copyrighted videos….

Plaintiff merely alleges that Google and YouTube “had both the ability and the opportunity to remove the infringing content, yet knowingly allowed certain infringing videos to remain on the platform while continuing to derive financial benefit from them,” not that YouTube’s service is incapable of substantial or commercially significant noninfringing uses…

The mere fact that infringing content existed on YouTube is insufficient to allege that YouTube attracted users specifically because of content that infringed Plaintiff’s copyrights.

The post eBay Defeats Contributory Copyright Claim–Lee v. SBS appeared first on Technology & Marketing Law Blog.

Coomer v. Lindell, 2026 WL 817370 (D. Colo. March 25, 2026)

Related post. This is more fallout from the efforts to deny the 2020 presidential election results. MyPillows huckster Lindell publicly trashed Dominion Voting and and its president, Coomer. A jury held Lindell and Frankspeech liable for defamation and more. The defendants unsuccessfully tried to overturn the jury verdict post-trial.

Frankspeech invoked Section 230 for its liability for Lindell’s speech. The court disagrees:

Mr. Lindell founded Frankspeech. He regularly acted as its corporate representative, including at trial. He hosted his own show on Frankspeech, broadcasted it through Frankspeech, and used the Frankspeech platform to make and publish statements about Dr. Coomer. There is no evidence that anyone other than Mr. Lindell exercised any meaningful degree of control over the Frankspeech entity. By all accounts, Frankspeech was Mr. Lindell’s corporate alter ego in this context….for § 230 purposes, Frankspeech’s defamatory statements through its agent would plainly qualify as participation in the development of those statements.

Frankspeech also claimed Section 230 for Clement’s remarks at a conference. The court responds: “Frankspeech—through Mr. Lindell and others—sponsored, promoted, and broadcasted the event….a reasonable jury could conclude that Frankspeech’s conduct (including its conduct through Mr. Lindell) created actual or apparent authority for Mr. Clements and other presenters at the Cyber Symposium to act as agents of Frankspeech.”

Murphy v. LinkedIn Corp., 2026 WL 881710 (N.D. Cal. March 30, 2026)

Fraudsters approached Murphy via LinkedIn direct messages. The conversation switched over to WhatsApp, where the fraudsters effectuated their fraud. Murphy’s lawsuit against LinkedIn fails due to Section 230:

Plaintiffs’ claims for negligence, gross negligence, and product liability are premised on a purported duty to “monitor” users, “restrict the accounts of fraudulent actors,” and to suppress “fraudulent activities” by users of LinkedIn’s platform. These claims “necessarily implicate” LinkedIn’s role as a publisher of third-party content because “discharging the alleged duty would require [LinkedIn] to monitor third-party content and prevent” communications between fraudsters and legitimate LinkedIn users. Nor can Plaintiffs sue LinkedIn for breaching a “duty to warn.” LinkedIn’s “role as a publisher of third-party content does not give it a duty to warn users of ‘a general possibility of harm’ resulting from” using LinkedIn’s services.

The plaintiffs unsuccessfully tried the defective design workaround:

Plaintiffs argue that their claims are not based on LinkedIn’s role as publisher, but rather its role “as a product manufacturer and developer of defective algorithms” that facilitated communications between fraudsters and Plaintiffs. But the Ninth Circuit has repeatedly upheld dismissal of negligence and product liability claims framed in the same way. [cites to Doe v. Grindr and Dyroff]

A Roommates.com workaround didn’t work either:

Plaintiffs’ claims are premised on LinkedIn’s neutral tools for connecting users, not on content that LinkedIn created or required users to provide as a condition of using its services. Indeed, LinkedIn expressly informs users that they “have choices about the information” on their profiles, and that users “don’t have to post or upload personal data” that may make them targets of fraud.

To put a finer point on it, if the plaintiffs are complaining about LinkedIn direct messages, then those messages may be covered by the ECPA just like email, and LinkedIn may have had limited legal rights to monitor the conversations at all.

Finally, the plaintiffs tried a TOS-based workaround, poured into consumer protection laws. The court acknowledges that some breach of contract claims may not be preempted by Section 230, but

These claims are premised on the same duties discussed above – duties to monitor, to design products in a different manner, and to warn – that fundamentally seek to hold LinkedIn liable for content created by the fraudsters. Styling these claims as different legal theories does not remove them from Section 230’s scope….

Plaintiffs seek to hold LinkedIn liable solely based on its general monitoring policy and aspirations to remove fraudulent users from its platform. Moreover, LinkedIn expressly disclaims liability by notifying users that they “may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive, or otherwise harmful,” and that LinkedIn “generally does not review content provided by [its] Members or others.”

McNeal v. Calvin, 2026 WL 879228 (E.D. Mo. March 31, 2026)

This case relates to the TV show Love & Marriage: Huntsville, shown on OWN (Oprah’s channel). The plaintiff, a lawyer (naturally), is one of the women featured in the show. She is upset about online comments about the show and sued many defendants pro se. The court says “Section 230 of the Communication Decency Act bars Plaintiff’s claims against YouTube, Google, and Tik Tok.” In particular, “The content uploaded by users cannot be attributed to internet service providers based on the theory that users are “agents” of the websites they use.”

Shiva Ayyadurai v. U.S., 2026 WL 879409 (D.C.D.C. March 31, 2026). My prior blog post about a different litigation of his.

This is a jawboning case:

Ayyadurai’s 75-page Complaint alleges that various Massachusetts state officials—none of whom are named as Defendants in this case—federal officials at the Cybersecurity Infrastructure Security Agency (“CISA”), and other government officials unknown to him have coordinated with private companies to regulate and censor his speech by “deplatforming” or “shadowbanning” him—that is, suspending his social media accounts or limiting the reach of his posts. Ayyadurai alleges that the Defendants took these actions in retaliation for posts in which he “articulat[ed] a government employee’s role in destroying the digital ballot images used to tabulate votes” in a prior election.

With respect to the liability of the social media defendants who allegedly got jawboned, the court accepts the 230(c)(2)(A) defense:

Ayyadurai’s Complaint fails to state a claim against the Social Media Defendants based on their content-moderation decisions because he does not plausibly allege that any of those decisions were made in the absence of “good faith” or that they were made for a purpose other than removing content that they “consider[ ] to be … objectionable.”…

conclusory allegations of bad faith are insufficient to state a claim against a platform based on activity within the reach of Section 230(c)(2).

At the same time, the court struggled with applying to Section 230(c)(1) to the removal decisions. Incredibly, it says:

only a few of the decisions restating this broad dictum [from Zeran] have grappled with its implications when the challenged conduct is a platform’s decision to remove objectionable content—such as a plaintiff’s own posts—rather than a decision to leave other objectionable content in place. Extending immunity under Section 230(c)(1) to cover direct challenges to the removal of user content is an uneasy fit with the language of the provision, which says only that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” A broad reading of Section 230(c)(1) that immunizes all content-removal decisions also risks “swallo[wing] the more specific immunity in (c)(2),” which applies only to content-moderation decisions that are made in “good faith.”

Not this shit again. I have repeatedly explained how Section 230(c)(2) can apply to first-party filtering decisions, which leaves room for Section 230(c)(1) to protect against liability for third-party content. There are DOZENS of cases applying Section 230(c)(1) to removal decisions, so for the court to think that it’s spotted something that all of those other courts have missed is laughable…and completely gratuitous…and ultimately inconsequential given that the court still tosses the case.

The court tries to justify its reluctance on Section 230(c)(1):

There is little reason to strain the reach of the immunity in Section 230(c)(1) when, as in this case, the immunity in Section 230(c)(2) leads to the same result.

NOOOO. There are several excellent reasons to apply both 230(c)(1) and 230(c)(2):

(1) 230(c)(1) doesn’t have a good faith prerequisite, which has mucked up 230(c)(2) jurisprudence and made 12(b)(6) dismissals much more difficult to obtain, jacking up the litigation costs for both sides and giving false hope to bogus claims. Indeed, because the court dismissed this case without prejudice, I’m sure an amended complaint will try again to manufacture bad faith sufficient to kick the case into very expensive discovery;

(2) removal and leave-up decisions are two sides of the same decision, i.e., every editorial decision about an item of third-party content is either a leave-up or removal decision, so they cannot be separated; and

(3) the statute and 25+ years of caselaw have established the principle that 230(c)(1) applies to removal decisions.

Sigh. In the end, this case ends up the same as all of the other content removal and account termination cases–dismissed.

Gaughan v. Barounis, 2025 N.Y. Misc. LEXIS 17243 (N.Y. Supreme Ct. December 18, 2025) 

The Complaint alleges that the impersonating profile and pictures of plaintiff were posted by defendants Barounis and Viera. Plaintiff’s contention that the XVideo defendants are liable for refusing or failing to remove offending material prepared by a third party, or that they may be held responsible for allegedly defamatory postings made by third parties does not state a viable basis for liability. Nowhere in the Complaint does plaintiff allege that the XVideo defendants posted or created the impersonating profile themselves, altered or edited its contents, or encouraged, required, or otherwise induced defendants Barounis and/or Viera, or any other user, to create the profile or upload unlawful content. To the contrary, plaintiff even alleges in her Complaint that Barounis and Viera allegedly making this impersonating profile goes against XVideo.com’s Terms and Agreements.

The Court also finds plaintiff’s argument that the XVideo defendants should be responsible for her alleged stolen identity, and that Section 230 does not apply in cases, unavailing.

It has also been held that “Sections 50 and 51 of the New York Civil Right Law sounds in privacy, not intellectual property, and thus does not fall within the intellectual property exceptions in Section 230.”

Equally, plaintiff’s contention that this immunity is lost because the XVideo defendants allowed the dissemination of plaintiff’s personal information and allowed discriminatory content (age, sex, sexual orientation, ethnicity, etc.) is unsuccessful.

Arana v. Molta, 2026 WL 1166348 (D. Mass. March 24, 2026)

Mr. Molta drafted the description of, and provided the photos for, the Dennis Property posted to WNAV’s website. WNAV did not review, revise, edit, or provide feedback on the Dennis Property listing that the Moltas posted to the WNAV website. WNAV is thus immune from liability for any of the statements or representations made by the Moltas in the Dennis Property listing.

Greer v. Moon, 2026 WL 1170015 (D. Utah. Feb. 11, 2026)

Mr. Greer’s only claims against Defendants are for contributory copyright infringement under federal law. Because those claims clearly “pertain[ ] to intellectual property,” they cannot be barred by section 230. Defendants’ argument concerning section 230 immunity fails.

Tufano v. Google LLC, 2026 U.S. Dist. LEXIS 100789 (N.D. Cal. May 6, 2026)

“Plaintiff premises his claims on Google allegedly “filter[ing] out all negative reviews” of Dr. Taban, including Plaintiff’s negative review, which Google allegedly removed.” The court dismisses per Section 230: “First, Google’s review service is an interactive computer service. Second, Google publishes the reviews on which Plaintiff bases his claims. Third, third parties, and not Google itself, provide the reviews published by Google.” The plaintiff said Google didn’t act in good faith, but Google relied on 230(c)(1) where good faith is irrelevant, and the plaintiff didn’t provide any evidence of bad faith.

Starship LLC v. Shein Distribution Co., 2026 WL 1455009 (C.D. Cal. March 20, 2026)

This is a fast fashion enforcement lawsuit that includes both copyright and trademark claims. The direct infringement claims largely fail because Shein operates as a marketplace for online vendors. The contributory infringement claims failed because the plaintiff wanted a staydown in response to takedown notices. The vicarious infringement claims also fail.

Shein defended against the unfair competition claim based on Section 230. The court says:

Plaintiff characterizes Shein as an information content provider because it “regularly markets and sells goods” and “is involved in almost all aspects of the marketplace’s distribution chain.” These conclusory assertions do not plausibly allege that Defendants are content providers. Plaintiff provides no factual basis to infer that Defendants materially contributed to the alleged infringement.

King v. Jilin Province Detiannuo Safety Tech. Co. Ltd., 2026 Fla. Cir. LEXIS 295 (Fla. Cir. Ct. Feb. 17, 2026)

Plaintiff does not allege that eBay participated in the creation or development of Seller’s listing or allege that eBay played some role in handling or transmitting the airbag components. Plaintiff only alleges that eBay should have removed Seller’s listing and/or issued some censure to Seller for its alleged noncompliant listing….

The only way eBay allegedly could have prevented the harm was by reviewing the third-party listing, determining whether it complied with internal policies, and removing it. That conduct, i.e., deciding whether to publish or remove third-party content, is a paradigmatic editorial function protected by the CDA.

In re Apple Inc. App Store Simulated Casino-Style Games Litigation, 2026 WL 1552391 (N.D. Cal. June 1, 2026)

The Court finds Defendants’ argument that Section 230 provides immunity from suit unavailing. Defendants point to the clause in Section 230 that states that “no cause of action may be brought” that is contrary to the statute. 47 U.S.C. § 230(e)(3). But the Tenth Circuit has held that Section 230 “provides immunity only from liability, not suit.” And the Ninth Circuit case Defendants themselves cite clearly states that Section 230 is designed “to protect websites against the evil of liability for failure to remove offensive content”; that case does not mention protection from suit. Thus, the Court concludes that Section 230 does not protect Defendants from suit.

Accardi v. CSC Holdings, LLC, 2024 N.Y. Misc. LEXIS 83186 (N.Y. Supreme Ct. November 26, 2024)

The plaintiffs claim that defendants failing to follow their terms of service makes them liable to the plaintiffs, effectively negating the immunity provided by the Communications Decency Act. After a review of the papers submitted by the defendants and the plaintiffs, the Court finds that the immunity provided by Section 230 does apply to the defendants in this action and the plaintiffs have not proffered any compelling argument or evidence to negate this immunity. As such, the defendants motion to dismiss the third cause of action pertaining to the failure to remove posts on social media is granted.

Life Mastery Network LLC v. Haygarth, 2026 WL 1622887 (D. Haw. May 22, 2026)

Paula indisputably enjoys immunity under the CDA for reposting content. Many courts have included private individuals within the scope of a “user.” Thus, (1) Paula is a “user of an interactive computer service”; (2) the subreddit link is “based on information provided by another information content provider”; and (3) Plaintiffs’ claim would treat Paula “as the publisher or speaker of that information.” As such, and as Plaintiffs have conceded at the Hearing, Paula is immune from lawsuit for what she reposted from Reddit.

But because the CDA does not immunize someone who posts original content, it makes sense that adding comments to something that is re-posted would not trigger CDA immunity. While these cited cases are not directly on point, the Court concludes that Paula’s comments regarding what she reposted are not subject to CDA immunity.

Glazer v. Meta Platforms, Inc., 1:25-cv-01849-GLR (D. Md. June 12, 2026)

The Court agrees with Meta that Section 230 bars Plaintiffs’ claims….All three elements are satisfied here: Meta is an interactive services provider; Plaintiffs’ claims treat Meta as the publisher or speaker of information under Section 230 because they “seek ‘to hold [Meta] liable for . . . deciding whether to publish, withdraw, postpone or alter content’ provided by third parties”; and the content at issue here is that of third parties, and Plaintiffs “seek[] to hold Meta liable, not for providing that content, but for allowing third parties to do so.”

Related ruling.

Sidoli v. YouTube LLC. 2025 U.S. Dist. LEXIS 210953 (N.D. Cal. Sept. 2, 2025)

Plaintiff also seeks to treat YouTube as a publisher because she alleges that YouTube wrongfully demonetized, restricted, and removed her videos. Such conduct falls within a publisher’s traditional functions….

YouTube cited authority that which stand for the proposition that Section 230 immunizes internet service providers from suit for termination of a plaintiff’s entire channel as well as the content that the plaintiff posts on that channel. Such authority is persuasive. Thus, any claim Plaintiff brings which seeks to challenge YouTube’s decision to remove Plaintiff’s YouTube channel is also barred by Section 230.

Also, “Plaintiff’s constitutional claims cannot proceed as YouTube is a private forum, not a state actor.”

See also Sidoli v. YouTube LLC, 2026 WL 1480407 (S.D.N.Y. May 27, 2026), upholding YouTube’s TOS and forum selection clause: “Defendants provide evidence, which Plaintiff does not dispute, showing that she agreed to abide by the terms of service by clicking the “Create Channel” button when she started her YouTube page on June 21, 2021.”

Kennedy v. Vickery, 2025 Me. Super. LEXIS 108 (Me. Superior Ct. Sept. 10, 2025)

RFK Jr. lost a defamation lawsuit. As for Section 230:

Defendant posted on X, without comment, a link to an article, authored by thegrio.com, titled “Anti-vaxxer Robert F. Kennedy Jr. is harming black people—and his family legacy—with his vaccine misinformation campaign.”…

Under the Communications Decency Act, internet service users are not liable for repeating, without embellishment, third party content….

Exhibit A to the Amended Complaint supports Defendant’s assertion that he posted the third-party content without embellishment. Plaintiff denies Defendant posted the link without embellishment, but cites no admissible record evidence to support the denial. Thus, under the Communications Decency Act, Defendant is not liable to Plaintiff for this post.

Awoye v. Jones, 2026 WL 1847088 (D.N.J. June 26, 2026)

In Instagram posts, Jones claims that Awoye scammed her. Awoye sued her and brought Meta along for the ride, claiming it had violated his publicity rights. There isn’t any publicity rights violation here:

The core of Plaintiff’s allegations is that Jones spread allegedly false information about Plaintiff on Instagram. Jones was not selling a product or otherwise soliciting money from her followers. As such, neither was Instagram. Jones’ posts were the “dissemination of news or information” and not made for a commercial purpose.”

Norton v. Meta Platform, Inc., 2026 WL 1963120 (N.D. Cal. July 7, 2026)

In posts on Facebook, several third parties accused Norton of criminal activity and shared intimate images of him….

“Meta is an interactive computer service provider.” Second, Norton alleges that third parties, not Meta, created the Facebook posts at issue; the third parties, not Meta, are the “information content provider[s].” Third, each of Norton’s claims seek to treat Meta as a “publisher” of third-party content. “A claim that obliges the defendant to monitor thirdparty content to avoid liability … treats the defendant as a publisher.”

Norton argued “but the algorithms.” Citing Ligon, the court says the algorithms matter only if the algorithm creates content. Citing Roommates.com, the court adds: “Norton doesn’t allege that Meta required its third-party users to create or post any of the content at issue.”

Moore v. LogSat Software LLC, 2022 WL 23074273 (S.D. Ind. Sept. 29, 2022)

John Moore has never been accused of, arrested for, or convicted of any sex-related offense; yet, his name, picture, address, and other identifying information appear on LogSat Software LLC’s app, called “Sex Offenders Search”….

Mr. Moore was convicted in Indiana of voluntary manslaughter. Thus, he was required to register on a violent crime registry in Indiana. The violent offender and sex offender registries are the same in Indiana—in other words there are not two separate lists. Mr. Moore testified that he believed that there was no national violent offender registry, just a national sex offender registry and that he is on that because the Indiana Registry is reported to the National registry….

the alleged defamatory statement at issue is that Mr. Moore’s name, picture, address, and other identifying information appear on app called “Sex Offenders Search,” because he is not a sex offender and has never been accused of, arrested for, or convicted of any sex-related crimes. Mr. Moore does not allege that he was wrongfully included in the data set that LogSat purchased from FWD, or, for that matter, that he was wrongfully included on Indiana or the National registries.

The post Large Roundup of Section 230 Rulings appeared first on Technology & Marketing Law Blog.

The plaintiff claims a copyright in a book, Drug Lords of Oakland. The defendants operate a YouTube channel, Evil Streets TV. The plaintiff says that the defendants posted 15 videos, each of which narrated a chapter from his book, plus some videos included copyrighted photos from the book. The court implies the dispute roughly followed a DMCA notice-and-takedown protocol: I believe the plaintiff submitted a 512(c)(3) notice, the uploaders counternoticed per 512(g), the plaintiff unmasked the uploaders through a 512(h) unmasking subpoena, and the plaintiff named the uploaders in the lawsuit.

The court allows the plaintiff’s direct copyright infringement claim against the YouTubers to proceed. In contrast, YouTube wins the motion to dismiss:

Direct Infrngement. “Mr. Barnes fails to allege any facts showing YouTube’s control of or active involvement in the alleged infringement on the Evil Streets TV YouTube channel.”

Contributory Infringement. Per Cox v. Sony, “Mr. Barnes does not allege that YouTube intended that its service be used for infringement, that it induced infringement, or that it tailored its service to infringement. In addition, Mr. Barnes does not allege that YouTube has no use beyond its ability to host infringing content, nor could he plausibly make such allegations.”

Vicarious Infringement. The plaintiff’s allegations about right and ability to control were too conclusory. With respect to YouTube’s direct financial interests in the alleged infringement:

there are no allegations that YouTube profited because of the Sanchez defendants’ alleged infringement. At most, Mr. Barnes alleges that YouTube generally profits by hosting and allowing people to view third-party content, including the Sanchez defendants’ videos, and generally by operating the Partner Program according to its terms. The FAC is devoid of any allegations that any individuals sought out YouTube’s services “specifically because of the availability of the infringing material.”

This was a pro se challenge to YouTube’s core business, so it was always doomed to fail. Note that YouTube won without relying on the 512(c) safe harbor.

Case Citation: Barnes v. Sanchez, 2026 WL 1912085 (N.D. Cal. July 2, 2026). The CourtListener page.

The post YouTube Exits Copyright Lawsuit Over YouTubers’ Videos–Barnes v. Sanchez appeared first on Technology & Marketing Law Blog.

Cloudflare provides content delivery network (CDN) services to Meta/Facebook. The plaintiff claims the images remained on Cloudflare months after she demanded their removal from Facebook. The opinion doesn’t indicate if the plaintiff tendered a notice directly to Cloudflare or when (if ever) Cloudflare knew/should have known that the images were NCII. Plus, even if the plaintiff had submitted a takedown notice to Cloudflare directly, Cloudflare would have simply forwarded it to Facebook because Cloudflare can’t remove the images from Facebook’s site.

Note how this lawsuit is trying to impose tertiary liability on Cloudflare: Alleged wrongdoer = ex-fiance. Supporter to wrongdoer = Facebook. Supporter to supporter to wrongdoer = Cloudflare as service provider to Facebook. I have repeatedly expressed my concerns about potential tertiary liability. Nevertheless, some courts have illogically implied that a tertiary defendant may be liable for the primary wrongdoing and may not qualify for Section 230, even if the secondary defendant might qualify for Section 230.

Despite the ongoing swiss cheese-ification of Section 230, this case ends up being a fairly straightforward Section 230 dismissal for Cloudflare.

Publisher/Speaker Treatment

The plaintiff argued that because Cloudflare doesn’t have the ability to remove the images, Cloudflare didn’t make any publication decisions and thus wasn’t being treated as a “publisher or speaker.” (The court doesn’t explore the obvious problem when the plaintiff admits that Cloudflare lacked the ability to redress the problem). The court responds that, per Doe v. Twitter, Section 230 applies to any content dissemination, which Cloudflare does.

Cloudflare Doesn’t Become an Information Content Provider if It’s Also an Access Software Provider 

Cloudflare claimed to be an access software provider per Section 230(f)(4). The plaintiff tried a bizarre argument that, by invoking that characterization, Cloudflare admitted it had become an information content provider of the NCII. I didn’t understand this argument, and I don’t think the court did either.

Instead, the court treats this argument as an attempted Roommates.com workaround, which does not succeed: “Not only did Cloudflare not encourage the development of the content, but it had no ability to directly remove it from Facebook. Instead, like GoDaddy, Cloudflare merely provided access to content created by a third party, which is activity protected under section 230.”

IP Exception to Section 230

Although presumably the plaintiff owned the copyrights to the selfies she sent to her ex-fiance, she did not allege copyright infringement, which would have been excluded from Section 230 per the statutory exception for IP claims. Instead, the plaintiff advanced claims per the Violence Against Women Act Reauthorization Act of 2022 § 1309, 15 U.S.C. § 6851. An 6851 claim is not an IP claim. Cite to Doe v. X, which said “the statute under which Plaintiff sues—§ 6851—is not an intellectual property law.”

How Might the Take It Down Act Apply?

The court didn’t discuss the Take It Down Act, but it seems highly relevant to this case. [Note: there isn’t supposed to be a private right of action in the Take It Down Act, but I’m sure plaintiffs will try to manufacture one anyway.]

Per the Take It Down Act, Facebook would have to remove the images within 48 hours of receiving notice.

I can’t tell if Cloudflare would be governed by the Take It Down Act when it’s acting as a CDN. A “covered platform” is either:

• a platform that “primarily provides a forum for user-generated content.” This does not apply to Cloudflare because it’s a B2B service to such forums.
• a platform “for which it is in the regular course of trade or business of the website, online service, online application, or mobile application to publish, curate, host, or make available content of nonconsensual intimate visual depictions.” I’m not sure if this definition is meant to cover every website or app that might have a stray depiction of nonconsensual intimate visual depictions (this would be every UGC site that permits video or graphics, and it might apply to Cloudflare as a “host”), or if the definition only reaches platforms that focus on such content, like the old “revenge porn” websites.

The definition of “covered platform” excludes IAPs, email service providers, and a service that “consists primarily of content that is not user generated but is preselected by the provider.” I don’t think a CDN clearly fits into any of those exclusions. So does Cloudflare have to comply with the Take It Down Act? ¯\_(ツ)_/¯

If Cloudflare is a covered platform, I don’t see how Cloudflare could comply. As a CDN, it doesn’t have the ability to remove individual items. Now what? Would Cloudflare have to block all of Facebook each time it receives a Take It Down Act takedown demand covering an item on Facebook?

Case Citation: Doe v. Cloudflare, Inc., 2026 WL 1805000 (N.D. Cal. June 23, 2026)

UPDATE: The court denied the plaintiff leave to amend the complaint:

Having considered Plaintiff’s motion and proposed second amended complaint, the Court holds that the proposed amendment would be futile. The amended claim for violation of 15 U.S.C. § 6851 is still barred by 47 U.S.C. § 230(c)(1).

Plaintiff alleges that “Cloudflare assists Facebook with, and facilitates, the disclosure of [nonconsensual intimate images (“NCII”)] by making content accessible.” “This dissemination of content is a clear function of a publisher as required for immunity under section 230.”

Selected Prior Posts Relating to Cloudflare/CDNs

• Using a CDN May Contribute to Finding Personal Jurisdiction–R18 v. ThisAV
• Cloudflare Isn’t Liable for Providing Services to Alleged Infringers–Mon Cheri Bridals v. Cloudflare
• The Legal Implications of Datacenter Location (Guest Blog Post)
• Data Center Avoids Copyright Liability By Forwarding DMCA Notices to Its Customer–ALS Scan v. Steadfast
• Bittersweet DMCA Safe Harbor Defense Win in Ninth Circuit–Ventura v. Motherless (Catch-Up Post)
• Ad Network Defeats Secondary Copyright Claims–ALS Scan v. JuicyAds

The post Cloudflare Defeats Lawsuit Over Nonconsensual Intimate Imagery (NCII) on Facebook–Doe v. Cloudflare appeared first on Technology & Marketing Law Blog.

The question in this case is whether Facebook is liable for the scammy ads. The lower court dismissed the case due to the scienter requirements of Arkansas’ publicity rights statute. At the same time, the lower court rejected Section 230 due to the atrocious Anderson v. TikTok ruling [FN]. Huckabee sought a reconsideration of the court’s initial opinion but got the same result.

FN: In the Third Circuit, publicity rights claims are not covered by Section 230 due to the IP exception. The lower court didn’t address that issue, but Section 230 was unlikely to govern this case either way.

On appeal, with two Trump appointees on the panel (including Judge Bove), the Third Circuit revives Huckabee’s case in an inappropriately brief and inadequately reasoned non-precedential opinion.

The opinion turns on Facebook’s scienter about the scam. A reminder that courts normally don’t reach scienter issues about third-party content (including third-party ads) because Section 230, when it applies, preempts any inquiries about scienter. That’s one of Section 230’s core strengths. When Section 230 doesn’t apply, courts routinely conduct tendentious, epistemological, and often irresolute (or, at least, unpredictable) inquiries into what the defendant “knew” about the third-party content and when. Scienter inquiries are extremely dangerous for online publishers, because courts can often manipulate the scienter standard (in this case, it was set by statute) and plaintiffs can always find some facts that could impute scienter with enough squinting.

Huckabee alleged the following aspects of Facebook’s scienter:

• Meta sells advertisements;
• Meta allows advertisers to pay more to popularize those advertisements;
• Huckabee is a nationally recognized celebrity;
• Huckabee “has been a lifelong opponent of marijuana and its derivatives—i.e., CBD”;
• Meta hosted inaccurate CBD advertisements with Huckabee’s unauthorized name, image, or likeness;
• In one of those advertisements, Meta hosted a fake ‘FoxNews.com’ link;
• Meta approved the advertisements;
• Meta has approved CBD advertisements with fake endorsements from other media celebrities since at least 2021; and
• Meta’s approval and maintenance of the Huckabee advertisements was with actual malice or, at least, with reckless disregard to their truthfulness or accuracy.

This list of Facebook’s alleged sins looks rote and generic. Similar allegations could be made against almost every online publisher of third party content (ads or editorial). Ordinarily, Section 230 should moot these inquiries.

With respect to publisher liability, the Arkansas publicity rights statute specifies a scienter standard of actual knowledge or constructive knowledge, defined as being “aware of facts or circumstances from which a violation of this subchapter is apparent.” This is a DMCA 512 “red flags”-style scienter level, so I rate it as somewhere between recklessness and negligence.

Here is the unpublished opinion’s entire “analysis” of Huckabee’s allegations about Facebook’s scienter (it was one long paragraph; I added paragraph breaks):

As a baseline, the advertisements are premised on a development that Huckabee, a public figure and “lifelong opponent of marijuana and its derivatives—i.e., CBD”–is now endorsing CBD products. While such a stark change of heart can be convincing, in the context of an advertisement, it also raises questions about the legitimacy of the changed position. Those doubts, by themselves, are not enough to infer that Meta had constructive knowledge of the misuse of Huckabee’s name, image, or likeness.

The original complaint tries to bolster that inference by also alleging that Facebook previously hosted similar, fraudulent CBD advertisements using the name, image, and likeness of other media personalities, and that news outlets reported on those instances. That helps, but even the combined effect of those allegations does not cross the plausibility threshold.

Most critically, however, the original complaint states that one of the advertisements displayed on Facebook’s platform linked to a website falsely purporting to be a Fox News article. That bogus link, when coupled with the unusual association of Huckabee and CBD and the prior fraudulent CBD advertisements on Facebook, suffices for allegations that Meta was plausibly “aware of facts or circumstances” from which the advertisements’ misuse of Huckabee’s name, image, or likeness was “apparent.”

To recap, the court says that Facebook didn’t have scienter about the scammy CBD based on (1) Huckabee’s fame or his putative change of position about CBD, or (2) Facebook hosting other CBD scam ads or reading news reports about the scam. The court doesn’t say why these allegations weren’t enough, or why the presence of the other ads “helps” the plaintiffs but not enough to clear the threshold. So far, the court simply spits out two conclusory rejections of the scienter allegations.

The court then says Huckabee magically crossed over the scienter line by combining the prior two sets of allegations PLUS the allegation that “one of the advertisements displayed on Facebook’s platform linked to a website falsely purporting to be a Fox News article.”

What? I have so many questions, none of which were answered by the court’s conclusory statement:

• How would Facebook know the landing page is bogus? Can you tell the differences between Fox News content and parody?
• How should Facebook check every ad link to confirm the landing page’s veracity?
• Could Facebook run some kind of automated landing page validator that would negate its purported scienter, at least to this panel’s satisfaction?
• Many advertisers use multiple ad landing pages that vary by recipient and by ad copy. Would that matter to any evaluation about whether the landing page was bogus?
• Many ads run through affiliates, who may use their own URLs and copy for landing pages. Would that matter to the bogus determination?
• Is the panel saying that only the ad with the “bogus” landing page is still in play, or because one of the ads had a bogus landing page, Facebook now had scienter about all of the ads? I think it’s the latter, but then the court didn’t explain how one ad’s problems impute liability for all of the other ads.

In other words, because the panel didn’t provide any actual explanation, the court’s ruling doesn’t make sense and leaves open many, many key questions.

The court remands the case for further evaluation of the “merits” of Huckabee’s publicity rights claim.

* * *

This ruling is a microcosm of the broader battles over scammy online ads. Since the Goddard v. Google case in 2009, it was black letter law that online publishers weren’t liable for scammy ads per Section 230. Section 230’s applicability to scam ads was overridden by the Calise v. Meta decision. Since then, courts have found a variety of ways to expose online publishers to increased liability for scam ads, at least at early litigation stages.

To be clear, online publishers absolutely must take steps to protect their audience from scammy advertisers. Otherwise, scam advertisers will abuse the audience’s goodwill towards the publisher to make illegitimate sales, driving out the legitimate advertisers and likely taking the publisher down too. We can debate if Facebook does enough to combat scammy ads (I haven’t formed a definitive conclusion on that question). But this ruling represents an implicit broadside against the automated operation of self-service ad programs, asking Facebook to validate something that isn’t within the four corners of the ad copy. Given that it’s difficult or impossible of the publisher adequately validating that information, imposing a legal obligation like that jeopardizes the feasibility of self-service ad tools. That, in turn, could have dramatic effects on advertisers, publishers, and the entire Internet ecosystem.

Case Citation: Huckabee v. Meta Platforms, Inc., No. 25-2347 (3d Cir. June 23, 2026)

UPDATE: On remand, the district court held that Huckabee’s publicity rights claim could proceed. Huckabee v. Meta Platforms, Inc., 2026 WL 2349690 (D. Del. Aug. 13, 2026). The court says Meta, as opposed to its advertisers, allegedly made the requisite commercial use of Huckabee’s personality: “Plaintiff’s original complaint alleges that
Defendant sells advertisements to support its operations, accepts payments so that certain advertisements appear more prominently on the feeds of its users, “decides which posts appear at the top of users’ newsfeed to maximize exposure to certain posts, including advertisements,” approved and maintained the challenged advertisements, and that the challenged advertisements reached numerous individuals.” To me, this all still sounds like it should be preempted by Section 230… ¯\_(ツ)_/¯

BONUS: Awoye v. Jones, 2026 WL 1847088 (D.N.J. June 26, 2026): In Instagram posts, Jones claims that Awoye scammed her. Awoye sued her and brought Meta along for the ride, claiming it had violated his publicity rights. But there isn’t any New Jersey publicity rights violation here:

The core of Plaintiff’s allegations is that Jones spread allegedly false information about Plaintiff on Instagram. Jones was not selling a product or otherwise soliciting money from her followers. As such, neither was Instagram. Jones’ posts were the “dissemination of news or information” and not made for a commercial purpose.”

Something you don’t see every day: the plaintiff’s lawyer’s law firm bio highlights that he is an “active member of MENSA [and] edits and contributes to Proteus, the newsletter for Delaware Valley Mensa.”

The post Scammy Ad Lawsuits Keep Vexing the Courts–Huckabee v. Meta appeared first on Technology & Marketing Law Blog.

The first two rulings came in March. In the Bouck case, the court rejected Facebook’s Section 230 defense because Facebook’s generative AI allegedly contributed to the ad copy. In the Suddeth case, the court accepted Facebook’s Section 230 defense because the plaintiffs focused on algorithmic amplification.

Although the Bouck case initially overcame Section 230, in an under-the-radar ruling this week, the court nevertheless dismissed it as preempted by federal securities law. So the Bouck plaintiffs got a first-hand taste of the infamous Ninth Circuit switcheroo, which occurs when the plaintiffs get false hope that they might actually win because they got around Section 230, only to slam into other brick walls in their prima facie case.

The March Bouck Ruling

Section 230

Meta’s Section 230 defense turns on whether it was a co-creator of the ads sufficient to become an “information content provider.” The court says “What it means to “create” or “develop” content on the internet is not self-evident.” The court says there’s a fact dispute over whether Facebook’s contributions were material:

The alleged illegality stems from the advertisements’ content—i.e., the false statements made to Facebook and Instagram users that induced them to click on the ads. Plaintiffs have averred that Meta participated in the construction of the ads by literally generating, using artificial intelligence, the images and text in the advertisements. That degree of participation is not protected by section 230…. [cite to Forrest v. Meta]

The district court in Forrest accepted that optimizing the appearance of an ad to drive engagement was enough of a contribution to the ads’ illegality to preclude section 230 immunity. Here, in addition to averring facts which, if proven, would establish that Meta altered the ads’ appearance to maximize impressions, Plaintiffs have averred that Meta’s tools allowed the scammers to produce “AI-generated text and images” for use in the ads through its Advantage+ Creative tool.

The court says Carafano doesn’t help Facebook because:

Plaintiffs have averred that Meta created the offending information by generating some of the false statements that tricked them into the investment scheme….

Plaintiffs aver that the scammers used Meta’s Advantage+ Creative tool which, as explained, uses artificial intelligence to enhance whatever message the user inputs. If a user, for example, tells the tool that he is interested in an ad promising astronomical weekly investment returns, Advantage+ Creative will spin up a slew of ads that include the provided language and other language, images, and videos it decides will be effective in promoting the user’s chosen message….

Without question, Advantage+ Creative and the other tools in Meta’s advertising suite would not have come up with that language without the inspiration from the scammers, but that language is still the creation of Meta.

One way of reading this decision is that Section 230 has limited applicability to Generative AI outputs. If the model outputs something new (as opposed to verbatim replicating material in its index or provided by the user), then the newly created material isn’t covered by Section 230.

Aiding and Abetting Fraud

The court says Facebook’s ad review process should have detected that the ad looked scammy (see an example on the right): “Even a cursory look would warrant suspicion that the ad is fraudulent. Meta cannot, with a straight face, claim otherwise.” Facebook responded that the ad review was automated (i.e., no human performed the “cursory look” that the judge was contemplating), a response the judge calls “confounding” because “It was Meta’s decision to use technological review tools to screen ads, and it does not now get to claim it had no idea what was going on because it tasked some software program with doing the first pass.”

The judge is dabbling with some heady topics here in an unsatisfying and superficial way. At core, the judge–whether he intended to or not–is addressing the epistemological question of when a machine “knows” something. This is a crucial topic for the digital age, and it deserves more in-depth and thoughtful treatment than the judge provides here. Alternatively, the judge is accepting an argument that it’s “willful blindness” to turn over ad review to the machines. But nowadays machines do a lot of scanning and screening without humans in the loop, and it deserves some careful and thoughtful judicial review to determine if such delegation deserves to be condemned with a “willful blindness” style punishment. The judge didn’t do that either.

Contract Breach

The plaintiffs tried the oh-so-tired hack of claiming that TOS content policy restrictions should be treated as affirmative representations that the policies won’t be violated. Not this again. Sigh. The judge doesn’t take the bait (cite to Lloyd v. Facebook):

The provision of the ToS on which Plaintiffs rely does not expressly or impliedly impose a binding contractual obligation on Meta to do anything. It is much more naturally read as a creating a duty of its users not to pollute Meta’s platforms with scam investment ads….

To the extent the ToS even mentions Meta doing something to prevent fraud, it speaks only in aspirational terms…Meta, however, never promises to take concrete steps to effectuate that aspiration.

Negligence

“Plaintiffs have averred that Meta did more than just sit idle as fraudsters roamed freely on their platforms. Therefore, no “special relationship” need be pleaded for the case to move forward.”

Unruh Act

“Plaintiffs here aver that they were targeted because of their race or national origin, not that they were excluded from anything. Whatever moral condemnation that merits, it is not a violation of the Unruh Act.”

The court distinguishes Liapes because, in that case, the plaintiff complained she didn’t receive ads based on her protected classifications. Here, the plaintiffs got the ads: “Far from encountering an exclusionary practice, they encountered an inclusionary one—it is just that they wish they were not included.” The court rejects the plaintiffs’ attempt “to spin Liapes into a general prohibition on targeting based on protected characteristics.”

Case Citation: Bouck v. Meta Platforms, Inc., 2026 WL 810036 (N.D. Cal. March 24, 2026)

The March Suddeth Ruling

Because of its implications for Generative AI, the Bouck case has garnered some coverage. That coverage overshadowed a companion case, the Suddeth decision, issued by the same judge, on the same day, involving the same basic claim (Chinese stock pumping-and-dumping). Unlike the Bouck case, the judge dismissed the Suddeth case.

In Bouck, the plaintiffs claimed that Facebook helped the advertiser build and polish up the ads using Generative AI. In Suddeth, the plaintiffs claimed Facebook algorithmically amplified the ads. The court has little difficulty concluding that algorithmic amplification is governed by Section 230, citing Dyroff and Doe v. Grindr:

Their theory of algorithmic amplification is nothing more than an averment of facilitation. The core illegality—the choice to use Plaintiffs’ likeness and falsely represent that they endorsed certain investments—was exclusively undertaken by the scammers. Meta provided those scammers tools to disseminate that fraud that may well have played a role in the success of the ploy. However, as in both Dyroff and Grindr, Meta’s tools were content neutral on their own—it was the scammers who chose to manipulate those tools for illicit ends.

The judge distinguishes his own simultaneous ruling in Bouck:

[in Bouck,] the plaintiffs averred that Meta contributed materially to the development of the ads by offering generative-AI tools that developed the ultimate content of the fraudulent ads. Meta’s role in that scheme, therefore, allegedly went beyond offering neutral tools that promoted content developed exclusively by the scammers—Meta, at least according to the complaint, was a genuine co-conspirator in the creation of the offending content. Plaintiffs have failed to aver a similar level of complicity here.

The court summarizes: “Section 230 thus bars any claim which, at bottom, seeks to hold Meta liable for the damage done by the content of the fraudulent ads.”

Case Citation: Suddeth v. Meta Platforms, Inc., 2026 WL 810252 (N.D. Cal. March 24, 2026)

The June Bouck Ruling

We’re back to the classic Ninth Circuit switcheroo: the arguments that the plaintiffs used to get around Section 230 ensure the failure of the prima facie case. Here, the plaintiffs alleged state law claims to redress what is fundamentally a federal securities law claim. The court summarizes:

Meta…argues that the theory which helped Plaintiffs defeat the first motion to dismiss compels granting the second. If it is true that Meta contributed to the creation of the fraudulent ads, then this suit is necessarily based on the falsity of Meta’s statements. A suit in which a plaintiff claims the defendant made false statements which led the plaintiff to purchase securities when he otherwise would not have is quintessentially one sounding in the securities laws, even if the right of action comes from state law. SLUSA prevents precisely that type of suit from being maintained in any court, state or federal….

At bottom, Plaintiffs are trying to have it both ways. They assert Meta’s misrepresentations aided and abetted the core fraud by pushing them into scam investment groups while simultaneously maintaining that those misrepresentations were not material to their decision to purchase CLEU stock. Both cannot be true—either the misrepresentations mattered (in which case SLUSA applies) or they did not (in which case their claims fail on the merits).

This denouement will surely attract less attention than the March ruling.

The plaintiff could in theory overcome this ruling by bringing a federal securities act claim. However, I suspect the plaintiffs won’t due to the significant pleading challenges. Plus, it will be difficult or impossible to put Facebook on the hook for those claims.

Case Citation: Bouck v. Meta Platforms Inc., 2026 WL 1697630 (N.D. Cal. June 11, 2026)

BONUS: Daigneau v. Meta Platforms, Inc. and Irving v. Meta Platforms, Inc., 2026 WL 2076112 (N.D. Cal. July 17, 2026):

In two related cases, plaintiffs allege that they fell for “pump-and-dump” investment schemes, advertised on Facebook and Instagram and carried out in WhatsApp groups, where criminal networks operating out of China pressured them to purchase “penny stocks”—for Daigneau, Ostin Technology Group Co., Ltd. (“OST”) and for Irving, Jayud Global Logistics Ltd. (“JYD”)—while the scams’ orchestrators sold off their own shares. The plaintiffs all allege that with its advertising tools used to develop and target the fraudulent advertisements, Meta not only enabled and facilitated but also materially contributed to the scheme and is liable for the financial loss they suffered. This same scenario was alleged in Bouck et al. v. Meta Platforms, Inc. (25-cv-5194-RS), a case recently dismissed by Hon. Richard Seeborg. Because plaintiffs seek to hold Meta liable for its role creating, optimizing, and targeting the scam advertisements “in connection with” plaintiffs’ purchase of securities, I agree with Judge Seeborg that their claims are barred under the Securities Litigation Uniform Standards Act of 1998

The post Section 230 Doesn’t Apply to Generative AI Enhancements to Ad Copy (But the Plaintiffs Lose Anyway)–Bouck and Suddeth v. Meta appeared first on Technology & Marketing Law Blog.

Note: I checked her LinkedIn page and she didn’t indicate that she has a law degree or is licensed to practice as a lawyer. Legal training or a law license isn’t required to engage in legal theorizing, but it raises some questions about what “legal strategy services” she can offer and what evidentiary privileges apply to any conversations with her actual or prospective clients.

Katherine Starr also appears to be quite interested in trademarks. The footer on her website says:

KATHERINE STARR is a trademark of Katherine Starr. Negligent Dating, Negligent Digital Access, Negligent Digital Architecture, Digital Maritime Doctrine, Negligent Frequency, The Negligent Shield, and Negligent Legal Architecture are service marks of KStarr Enterprises, LLC

If you are wondering, the “digital maritime doctrine” is “a legal framework applying maritime principles like duty of seaworthiness and flag of convenience to modern digital platforms.” I think Admiralty Law has many underexplored insights to offer Internet Law.

[Little-known fact: When I was writing my first Internet Law paper in 1993, the student editor editing my paper independently shared a Maritime Law course outline with me. So I did in fact think about how the Law of the Sea might apply to the Law of the Internet back in 1993! However, I didn’t have the legal vision and insights that Starr has brought to that question.]

Starr wrote a book titled Where There Are Rights. (Yes, she claims a trademark in the book title, despite the trademark rule that a book title isn’t eligible for trademark protection unless it’s part of a series). She describes the book:

Drawing on her dual perspective as a Legal Theorist and Two-Time Olympian, Starr introduces trademarked legal frameworks that name what courts, policymakers, and institutions have ignored: that negligence has an architecture, a frequency, and a delegation pattern, frameworks now ready to be tested in law.

To Starr’s credit, she didn’t just hypothesize that her frameworks were “ready to be tested in law.” She went ahead and actually tested them in court! She brought a pro se lawsuit against Google. Props (?) for walking the walk.

As a trademark geek, I’m intrigued by the concept of “trademarked legal frameworks.” How can a “legal framework” become trademarkable, and what rights would that trademark confer? Could a lawyer sue another lawyer for bringing a claim based on a “trademarked legal framework”? (Especially if Starr isn’t a licensed lawyer and couldn’t file claims based on those frameworks for any clients). Sounds like a good but challenging trademark law final exam question.

The court describes Starr’s claims against Google:

She alleges that when users search for her legal frameworks using Google’s search engine, the frameworks themselves appear, but the search results “fail to return Plaintiff’s name in connection with these works.” She also alleges that Google’s search engine turns up other Katherine Starrs, but it is unclear from the complaint whether this occurs when a user searches for Starr’s legal frameworks or simply for the name “Katherine Starr.” Starr alleges that this conduct has “divert[ed] recognition, professional opportunity and search authority away” from Starr, who is “the rightful originator of the frameworks.” She also alleges that her business, Plaintiff KSTARR Enterprises LLC (“KSTARR”) has “experienced loss of prospective business opportunities, reputational dilution, and economic harm.”

If you want to indulge your inner legal nerd, these arguments raise all kinds of fascinating conceptual issues to cogitate and debate. For example, how could a “trademarked legal framework” confer a right of attribution? If Starr isn’t a licensed lawyer, then exactly what professional opportunities have been disrupted by not attributing the “legal frameworks” to her?

None of these thorny doctrinal questions get addressed. Instead, we get a perfunctory opinion granting a motion to dismiss–the kind of standard opinion we see in pro se cases that are not close.

Lanham Act False Designation of Origin

The magistrate says Starr “does not allege that Google placed Starr’s or KSTARR’s mark on any goods or used or displayed her mark in the sale or advertising of services rendered in commerce….Starr does not allege that Google is selling anything.”

Tortious Interference

Though Starr alleges that Google generally understood that her “digital presence” was important to her business relationships, she fails to make any nonconclusory allegations that Google knew about prospective business relationships between Starr and specific attorneys, legal teams, academic institutions, or legal platforms…any effect on Starr’s business relationships was likely an incidental effect of Google’s broader “search algorithm and indexing practices.”

“Negligent Digital Architecture” and “Violation of Commercial Attribution Rights”

Starr alleges she is entitled to relief based on two legal theories she created: “negligent digital architecture” and “violation of commercial attribution rights.” In support of the former claim, she alleges that Google “owes a duty of care to ensure that its digital architecture does not foreseeably cause reputational or attribution-related harm to individuals whose identities and authored works are indexed on its platform.” According to Starr, Google was negligent in failing to “design[ ] or maintain[ ] a digital infrastructure that ensures accurate author attribution.” In support of the latter claim, Starr states that “[b]y structurally detaching Plaintiff’s name from search results referencing her original legal frameworks, Defendant has deprived Plaintiff of the right to be accurately represented as the author of her work in digital information environments.”

The District Judge should decline Starr’s invitation to recognize these novel causes of action. By Starr’s own admission, her “negligent digital architecture” claim is based in her own legal frameworks, not state or federal law. The undersigned also cannot identify any cause of action under state or federal law for “violation of commercial attribution rights.”

Starr tried to reposition the “negligent digital architecture” claim as a standard products liability claim. This doesn’t work: “Starr does not allege that Google’s search engine is ‘unreasonably dangerous’ or offer any facts suggesting that Google’s search algorithms are unreasonably dangerous.”

* * *

This is a magistrate judge’s R&R, so I imagine we’ll hear about this case at least one more time.

Google invoked Section 230 as a defense, but the court didn’t need to address it.

Starr’s claims challenge Google’s core algorithmic search results offerings. Lawsuits over Google’s organization and dissemination of organic search results have gone nowhere, even when they are not litigated pro se.

Case Citation: Starr v. Google LLC, 2026 WL 1603313 (W.D. Tex. June 3, 2026). The CourtListener page. The initial complaint.

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