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With Opinions Like This, Congress Doesn’t Need to Repeal Section 230–Massachusetts v. Meta

Eric Goldman — Sat, 11 Apr 2026 17:30:33 +0000

This is one of the dozens of state AG lawsuits against social media services that are being litigated independently of/in parallel with the federal social media addiction MDL (where the state AGs are also suing social media companies). Because these MDL-adjacent lawsuits are in state court, they are harder to track and flying under the radar. But this opinion won’t be overlooked. In it, the Massachusetts Supreme Court severely limits, or perhaps eliminates, Section 230’s applicability in Massachusetts.

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The court summarizes the state’s claims:

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

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

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

Section 230

Treated as Publisher

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

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

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

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

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

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

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

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

Relying on that garbled restatement, the court says:

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

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

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

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

Liability Based on Third-Party Content

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

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

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

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

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

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

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

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

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

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

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

What Happens Next?

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

Meta could choose to prioritize winning this case on remand on non-23o grounds. For example, the MA Supreme Court validated that Meta’s service features at issue are part of its content publication process. Perhaps that will revitalize Meta’s First Amendment defense?

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

Quo Vadis Section 230?

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

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

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

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

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

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

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What Does a Hologram Trademark Signify When the Hologram Isn’t There?–Upper Deck v. Pixels

Eric Goldman — Mon, 23 Mar 2026 15:03:02 +0000

Pixels is a print-on-demand vendor. Pixels’ users have uploaded various images associated with Michael Jordan sports trading cards. Here’s an example:

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?

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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.

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Section 230’s Application to Account Terminations, CSAM, and More

Eric Goldman — Thu, 19 Mar 2026 15:22:14 +0000

The Section 230 cases keep coming faster than I can blog them (the first 3 hit my alerts in a single day).

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.

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Another Reminder: Lawsuits Over Competitive Keyword Ads Are Stupid

Eric Goldman — Sun, 15 Mar 2026 15:36:36 +0000

This case involves two competitors that buy homes for cash: plaintiff Brothers Buy Homes and defendant John Buys Bay Area Homes. The defendant bought competitive keyword ads. Initially, the defendant displayed the plaintiff’s trademark in the ads, apparently due to the keyword insertion feature (see screenshot). The defendant turned off the keyword insertion feature after getting a demand letter.

The plaintiff sued in state court, the defendant removed to federal court, and in this ruling, the court remands the case back to state court because the plaintiff lacks Article III standing. This reminded me of the Yelp law litigation genre, where the cases routinely bounce from federal court because they are such trash that they lack Article III standing. Getting a case remanded to state court because the case is so terrible seems like a short-term “victory” for plaintiffs.

* * *

The court summarizes the key evidence of the lawsuit’s lack of merit:

[Defendant’s] search confirmed that Defendants received three leads from online searches for the terms “Brothers Buy Homes,” or “Brothers Buys Homes” between January 1, 2024, and December 31, 2024. All three leads occurred when the keyword insertion feature was turned off; thus, Blue Bay’s trademark never appeared in any of the three ads that generated leads. Blue Bay’s Operations Manager, Mike Briener, admitted there would not be any confusion with potential customers if the keyword insertion feature was turned off and Blue Bay’s trademark name did not appear in Defendants’ ad. Defendants therefore did not receive any revenue, profit, or business opportunity from any Google Ads containing Blue Bay’s name.

Let’s go over that the evidence again:

(1) The plaintiff is suing over 3 clicks. That alone is almost certainly financially irrational.

(2) Those clicks came from keyword ads without the plaintiff’s trademark in the ad copy.

(3) The plaintiff concedes those clicks aren’t attributable to consumer confusion. Briener’s concession may sound like a big deal, but he’s just acknowledging black letter law. Courts have repeatedly and unhesitatingly rejected trademark lawsuits over competitive keyword ads that don’t reference the TM in the ad copy. See, e.g., the Lerner & Rowe case.

(4) Defendants “did not receive any revenue, profit, or business opportunity from any Google Ads containing Blue Bay’s name.”

Why is this case still going? What are we even doing here?

The court recapitulates why this lawsuit is so meritless:

Defendants’ evidence shows that Defendants have not misrepresented themselves as Blue Bay, Defendants did not use Blue Bay’s trademark to generate leads by confusing consumers, Defendants did not do business with consumers who mistook Defendants as Blue Bay, and Blue Bay has not lost money from Defendants’ actions.

Sounds like this case is primed for dismissal. However, unfortunately for the defendants, the court resolves these problems on Article III standing rather than substantively dismissing the case for lack of merit. The court says it’s required to remand the case due to the Article III problem. This case is already clearly dead, but I guess the funeral will be a bit delayed. It seems like an excellent candidate for a trademark fee shift to the defendant.

Case Citation: Blue Bay Ventures LLC v. John Buys Bay Homes LLC, 2026 WL 710398 (N.D. Cal. March 13, 2026)

Personnel note: the plaintiff’s lawyer is Steffanie Danielle Stelnick, whose website self-styles herself as “the Real Estate Queen.” Her bio explains: “she earned her title as the Real Estate Queen helping clients with their full service real estate needs year after year.”

BONUS: David Penner MD PLLC v. Clear TMS+ PLLC, 2026 WL 838294 (W.D. Wash. March 26, 2026): “Clear argues persuasively that its purchasing or using a “keyword” is not itself a trademark infringement.”

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More Posts About Keyword Advertising

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Free-Trial Commercial Database Defeats Publicity Rights Claim–LaFleur v. Yardi

Eric Goldman — Sun, 01 Mar 2026 16:02:02 +0000

Two preliminary notes:

1) This opinion is by a TAFS judge (Trump-appointed, Federalist Society).

2) The right of publicity doctrine is incoherent, and this opinion illustrates that.

* * *

Yardi operates PropertyShark, which publishes a commercial database of searchable real property ownership records. Much (all?) of its data comes from the government. “PropertyShark operates on a free-trial basis by offering users an enticing sample of the full product to earn paid business.” Searchers can get access to one property report for free. After that, searchers are upsold to buy additional reports or a periodic subscription. The upsell sales pitch only begins after the searcher executes a search.

The plaintiffs are Ohio property owners. The reports on their properties “include their names, property address (which, in both cases, is also their home address), property purchase price, tax details, and other information about their Ohio property. Neither plaintiff consented to PropertyShark using their information. Nor would they have consented if asked.” They sued PropertyShark for publicity rights violations.

Huh? How can the publication of government records in a commercial database ever be a publicity rights violation? The purported rationale: a free trial of a commercial database of editorial content converts the records into ads during the trial, but the records revert back to their editorial content status when the trial ends. If this doesn’t make any sense to you, you are not alone. But there is a growing line of cases predicated on this premise, including the yearbook database and genealogy database cases. (Indeed, you might trace the rationale’s lineage to Facebook’s sponsored stories and the Fraley v. Facebook case from 15 years). Because the courts have been open to publicity rights claims in the yearbook and genealogy cases, the plaintiffs are proliferating the litigation to other free-trial/freemium commercial databases. Why wouldn’t they?

The court defines the elements of a publicity rights claim as “(1) unauthorized use of (2) a person’s commercially valuable name or likeness for (3) commercial purpose.” These elements are amorphous and flexible, like pretty much every other aspect of the publicity rights doctrine.

The court says that the “plaintiffs’ claims fail on the commercial-value prong”:

the commercial-value requirement laid down by Ohio courts saves businesses from having to blanch their advertisements of all likenesses lest they invade the owners’ right of publicity. Rather, it ensures that only those businesses are liable whose “purpose” in including the likeness is to take advantage of the “commercial or other values” associated with the likeness… if an ad element is present as a mere incident to the real star of the show, it’s not directly of “use” or “benefit” to the advertiser. [Huh?]

This passage implies that there is some kind of de minimis exception to publicity rights claims over ads, even if the person is identifiable. That doesn’t sound right to me.

So when does a name have commercial value sufficient to trigger publicity rights protections? The court says “a plaintiff needn’t possess widespread fame to have a commercially valuable persona—recognition within a subgroup suffice.”

This is an obviously problematic standard because it creates slippery slopes about what subgroups count and how much recognition is sufficient in those subgroups. These kinds of indeterminate standards are a bonanza to plaintiffs because they basically invite haggling. The court gets away with this standard because:

Not a single allegation in the complaint supports a finding that LaFleur’s or Grose’s (or any putative class member’s) name carries any recognition in any subgroup. Absent those kinds of allegations, we’re left to conclude that their names appeared only incidentally alongside PropertyShark’s invitations to the advertised service, in the sense that nothing about LaFleur or Grose as LaFleur or Grose adds value, in the user’s eyes.

So the bad pleadings in this case make it easier to sidestep the obviously problematic implications of the court’s standards.

The court rejects the plaintiff’s workaround that their names must have had commercial value because a commercial entity used them. The court distinguishes Wilson v. Ancestry because:

Ancestry.com used the plaintiff’s persona in a more targeted way than Yardi does: by sending personalized emails with the plaintiff’s information to prospective customers “who may be related” to the plaintiff, rather than appending a solicitation to subscribe onto any person’s property report in an untargeted way. So Ancestry.com affirmatively targeted its advertisements to people who might be related to the persona used in the advertisement, whereas PropertyShark passively invites users to become paying customers irrespective of which persona the user sees. In Ancestry, unlike here, the name itself was part of the ad’s value proposition.

That phrase “passively invites” sounds like an oxymoron.

* * *

To me, much of publicity rights law feels like Calvinball. For example, once we accept that free-trial offerings are “advertisements” that can turn editorial content items (such as government records) into content regulated by the right of publicity, I feel like we’ve already rigged the game. And saying that the plaintiffs’ names were commercially worthless, but other names might have “commercial value,” ensures many avoidable fights to figure out where those lines may be. None of this is rational or makes sense. We ought to take a giant step back and rethink the goals of the publicity rights doctrine, rather than proliferate increasingly haphazard legal standards incrementally.

Case Citation: LaFleur v. Yardi Systems, Inc., 26a0055p.06 (6th Cir. Feb. 27, 2026). The district court opinion.

Prior blog posts on Yearbook and Genealogy Cases

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What Does It Mean to Make a Voice Call in a Post-Telephone World?–Howard v. RNC

Eric Goldman — Wed, 14 Jan 2026 18:23:33 +0000

In 1991, Congress enacted the Telephone Consumer Protection Act (TCPA). The TCPA is a telephone exceptionalist statute–by design, the TCPA regulates telemarketing phone calls differently than other forms of marketing. I considered some implications of advertising medium regulatory exceptionalism in this paper.

This case involves the following TCPA restrictions (cleaned up): (1) “to make any call using an artificial or prerecorded voice to any telephone number assigned to a cellular telephone service,” or (2) “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message.” These restrictions depend on the statutory phrases “call,” “voice,” and “make”/”initiate” a voice call.

The Republican National Committee texted Howard’s cellphone with the following message:

As you can see, the text message included a video file that didn’t play unless the recipient pressed the play button. Howard, the plaintiff, says he never signed up for RNC’s missives. Did the RNC make/initiate a “voice” “call” by sending Ivanka’s video? The majority says no and dismisses the case.

The majority says that a “call” includes a text message. This reiterates long-standing Ninth Circuit precedent (the Satterfield case from 2009).

[In a footnote, the majority adds: “The mere fact that a phone can be set to shut off notifications for text messages does not mean that text messages do not, as a class, fall within the ordinary understanding of a potentially privacy-intruding “call.” A classic telephone call, which typically results in ringing of the phone, remains a “call” even if the particular user has his or her ringer turned off.”]

Citing a 2023 opinion, the majority says “voice” doesn’t include any silent communications.

Putting this together, the majority says the applicable provisions “only limit the use of artificial or prerecorded voices to begin a call.” The statutory concerns about privacy are implicated only when “the person called, upon being reached, is immediately and involuntarily subjected to the nuisance of listening to an artificial or prerecorded voice.” Thus, a voicemail with a prerecorded message implicates the provision, but if a live person asks the call recipient if it’s OK to play a prerecorded message, then the statutory requirements are satisfied.

The dissent calls out the majority for rewriting the statute, i.e., changing the statutory precondition of making or initiating a call into beginning the call.

As applied to Howard, the majority says:

The call at issue here—the text message and accompanying video file—included an artificial or prerecorded voice. But like a telephone call in which a live caller offers to play an artificial or prerecorded voice to the recipient, the RNC’s text message was made or initiated by its textual content and its silent inclusion of a ready-to-play video file….Because Howard’s voluntary engagement with the video file was a necessary intervening action between the RNC’s initial contact and the playing of the video’s artificial or prerecorded voice, any subsequent playing and hearing of the prerecorded voice in the video file is not included within the means by which the RNC made or initiated the “call.”

In a footnote, the majority adds: “We recognize that an individual’s phone settings could conceivably be changed so that, upon viewing a text message containing certain video files, the file would automatically begin to play. That would not change the ultimate result” because configuring that setting would constitute the recipient’s legal consent to play the file.

Implications

The TCPA Has Aged Poorly. The TCPA encoded assumptions about how the telephone system worked in the early 1990s. Obviously, the telephone system circa 2026 works very, very differently.

In the early 1990s, text messages didn’t really exist (though people used the pager system for similar functions), so the TCPA was not designed to cover text messages. Then, as courts extended the TCPA to that new medium, the courts didn’t contemplate that text messages might include multi-media components. This is why are applying a statute designed to regulate incoming telephone calls to a system for delivering video files. None of it makes sense.

In my view, every medium-exceptionalist statute ultimately collapses over time due to medium convergence. Congress misassumed that it could precisely define a telephone call that would accommodate changes in technology and social practices. As my long-standing idiom says, “if you can’t define it, you can’t regulate it.” Keep that in mind with the “social media” exceptionalist laws.

Was the TCPA the Right Tool for this Issue? What other claims could Howard have tried beyond the TCPA? The trespass to chattels claims come immediately to mind.

Political Advertising is Out-of-Control. Anti-advertising statutes routinely exclude political advertising. This makes sense for two reasons.

First, political advertising may receive greater constitutional protection than commercial advertising. Excluding political advertising is a way of bolstering the potential constitutional survivability of the statute.

Second, and I think more importantly, politicians don’t want to restrict their own power. “Do as I say, not as I do.” Today, many politicians are inveterate direct marketers, flooding their supporters (and sometimes their non-supporters) with requests for contributions. Why would they give up that stream of cash flows?

(My egoldman@gmail.com email address is often signed up for political spam by other “E. Goldman”s who are bad at typing, so I’ve seen how voracious political marketers can be).

If politicians really are concerned about marketer overgrazing, they ought to clean their own house–by statute, if necessary.

Case Citation: Howard v. Republican National Committee, 2026 WL 90273 (9th Cir. Jan. 13, 2026)

[Personal note: in 2025, my wife and I FINALLY cut our landline phone service. We now rely exclusively on our cellphones for personal phone service. I know that we’re late adopters to this approach. I don’t miss the landline at all. It was a magnet for telemarketers violating the TCPA. My cellphone number gets occasional telemarketing and text message spam, but it isn’t out of control…yet.]

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DMCA 512(c) Safe Harbor Applies to Embedding–Harrington v. Pinterest

Eric Goldman — Wed, 07 Jan 2026 17:23:19 +0000

This is a long-running class action copyright case (filed in 2020!) led by the photographer Blaine Harrington (now deceased). The plaintiffs complain about user-uploaded photos appearing in Pinterest’s off-website notifications to its users (e.g., email, in-app, and mobile push). This case was put on hold due to the Davis v. Pinterest case, but that case doesn’t preempt this one because Davis ultimately only addressed onsite displays, not off-site notifications. On summary judgment, the court says that Pinterest qualifies for 512(c) for in-line linking the UGC files into Pinterest’s notifications.

Service Provider. “Pinterest operates one of the largest social media platforms in the world, allowing users to upload content to servers operated by Pinterest.”

Repeat Infringer Policy. “Pinterest users earn a strike when they upload content that is the subject of a valid DMCA takedown notice, and accounts that accumulate too many strikes are terminated.”

Standard Technical Measures. The plaintiffs alleged the “International Press Telecommunications Council (ITPC) Metadata” was possible STM but didn’t adequately close the thought.

Stored at a User’s Direction

This factor vexes the court. The fact that Pinterest reformats the content doesn’t disqualify it from the safe harbor:

When a user uploads content to Pinterest, Pinterest automatically standardizes the file format and generates variants so it can algorithmically display Pins to other users in its signature grid formation. This is the same accessibility-enhancing format standardization and tag creation that was entitled to safe harbor in Ventura. This is also substantially similar to the video format standardization and “chunk” creation that automatically occurred in UMG when a user uploaded content. Pinterest does not modify user-uploaded content for use in e-commerce as the Atari defendant did. Nor does Pinterest significantly control what user-created Pins appear on its site as the defendant in Mavrix did. Although Pinterest’s machine learning algorithms do choose which Pins to display to which users, the Ninth Circuit specifically held that these algorithms exist for purposes of facilitating access

Still, what about the fact that the photos are displayed outside of Pinterest’s network? Given that those displays are in-line links, this case implicitly turns into an evaluation of the legitimacy/legality of embedding–though the court never uses that term… (In a footnote, the court acknowledges the server test and 512(d) but says it can ignore those).

The court says Pinterest’s embedding of UGC files in its offsite notifications still mean the files are being stored at the direction of users:

there appears to be little difference between an infringing display via web browser, which was entitled to safe harbor in Davis, and an infringing display via email. In both cases, Pinterest’s service merely provides the user’s software with a hyperlink. The software, be it a web browser or otherwise, then requests the image the hyperlink corresponds to from Pinterest’s server and displays it. Because both a hyperlink in an email and a hyperlink on a browser link back to images on Pinterest’s service, there is no clear reason why the first form of display would arise “by reason of the storage at the direction of a user” while the second would not.

To be clear, the embedding caselaw doesn’t direct apply to Pinterest’s defense here. The embedding precedent generally addresses if embedding qualifies as direct infringement (as well as related isues like TOS consent), while this court was interpreting 512(c)’s statutory standard for storing files at a user’s direction. But I think the issues ultimately merge into one: if the incorporation test applied, the court could have said that the displayed image wasn’t displayed at the user’s direction because Pinterest incorporated into the email interface. (See the screenshot to the right, showing how the user-uploaded image looks integrated into the email).

[Note: As a default setting, Gmail does not display in-line images in email. So if I received Pinterest’s notification emails, I would likely not have seen the image unless I took the extra step to show them. The court opinion doesn’t address this scenario.]

The plaintiffs tried a reductio ad absurdum argument that doesn’t persuade the court:

Harrington contends that extending Section 512(c) safe harbor protections to infringement outside of Pinterest’s platform would open the door for infringement on, for example, billboards in Time Square. But Section 512(c) is a fact-intensive inquiry. Though possible, like all things, Harrington’s hypothesis would require extreme facts outside the bounds of this case. The email notifications here merely provide a link to Pinterest users of material uploaded by other Pinterest users, and therefore narrowly facilitates access to users’ posts by sharing them with other users. By contrast, a billboard would presumably need to copy the image from the platform and display it to the general public—including those who are not Pinterest users—without providing a direct link to the user’s post. Such conduct would likely not be narrowly tailored at facilitating access to the user’s post.

To be fair, the plaintiffs have a point. If a Times Square billboard used in-line links to infringing user content to create the ad copy, this opinion would indicate that 512(c) still applied to the UGC. Rather than being ridiculous, this conclusion struck me as well within 512(c)’s sweet spot so long as the UGC remains hosted on Pinterest’s servers.

[Still, the plaintiffs’ hypothetical is ridiculous because (1) no one would rely on potentially breakable in-line linking for a high value venue like a Times Square billboard, and (2) ad copy goes through extra layers of legal review, so it would be weird for any ad to feature infringing content if the reviewers did their jobs].

Actual/Red Flag Knowledge. “Harrington never sent Pinterest a takedown notice or other prior communication identifying infringing material on the Pinterest service.”

Right and Ability to Control

Pinterest has presented evidence that the linked-to images in its notifications leads to user-uploaded images on Pinterest’s website, and Pinterest does not direct users to upload that content. The only facts potentially relevant to whether Pinterest has the “right and ability to control” the user-uploaded content is its algorithms and advertisements. On substantially similar facts, the court in Davis I found that Pinterest’s control over its algorithms and advertisements did not “constitute[ ] the kind of control that is necessary to lose safe harbor protection” under Section 512(c)….the connection between Pinterest’s algorithms and advertisements is insufficient to show Pinterest’s “right and ability to control” the allegedly infringing display

Direct Financial Benefit

a direct financial benefit requires facts showing revenue derived specifically from Pinterest’s display of Harrington’s copyrighted photo. Showing that advertisements generally appear in notifications is not enough

Implications

This opinion reaches a sensible “output agnosticism” about 512(c)’s applicability. So long as a UGC file remains hosted on the defendant’s servers, it doesn’t matter to 512(c) how many different ways the file may be accessed by others. This is consistent with the statutory text, which says that the defendant isn’t liable for “infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” Because this statutory language doesn’t mention how the stored files are accessed, this court appropriately rejected the plaintiffs’ efforts to add doctrinal confusion where none existed.

This case is frustrating because the plaintiffs never sent 512(c)(3) takedown notices, and the case would not have existed if the plaintiffs had done so because Pinterest surely would have honored the takedown notices. In other words, this lawsuit was yet another attempt to overturn in the courts Congress’ 512’s notice-and-takedown statutory structure so that plaintiffs could win even if they never sent takedown notices. The judge rightly rebuffed that effort. Nevertheless, plaintiffs have made some progress undermining 512(c) in other cases, even cases that ultimately produced a defense win.

Case Citation: Harrington v. Pinterest, Inc., 2026 WL 25880 (N.D. Cal. Jan. 5, 2026)

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A Massive Roundup of Section 230 Decisions

Eric Goldman — Fri, 02 Jan 2026 19:11:19 +0000

This post also owes its origins to my 2-week trip to China in June. Section 230 decisions started backing up while I was on the trip and never stopped accruing. In total, this post covers about 30 decisions in 7k+ words. Whew! Some of these decisions are real stinkers, too.

Doe v. City of Warwick, 2025 WL 2197311 (D.R.I. Aug. 1, 2025)

This case involves a third-party service that collects anonymous citizen tips for law enforcement. The service is called Tip411 and is offered by Citizen Observer. The city of Warwick adopted Tip411. Doe claims that Roe anonymously submitted harassing tips to Tip411. All of the tips proved false, but the tips caused law enforcement to confront Doe in an aggressive manner.

Doe sued Citizen Observer for negligently designing its service. Citizen Observer invoked Section 230. The court says that Doe properly stated a products liability claim:

His claims are based on the Tip411 product; that is, he is asserting product liability, negligence, and breach of warranty claims based on Citizen Observer’s own conduct in developing, marketing, and selling an allegedly defective law enforcement tool. His claims are also focused on the absence of adequate warnings to Tip411 users and Citizen Observer’s failure to provide municipal trainings. Reading the allegations in Mr. Doe’s complaint and taking the facts stated as true, the Court finds that Mr. Doe claims against Citizen Observer are product liability claims based on its conduct in defectively designing and failing to warn and/or train foreseeable users and breach of warranty of the Tip411 product.

Hmm…this seems problematic. For example, what “warnings” would have changed Roe’s behavior? And Citizen Observer is supposed to teach law enforcement how to do its policing work?

It goes downhill from there:

Illogically, Citizen Observer also asserts that it acts as a passive message board and/or server host. Mr. Doe agrees with the latter, asserting that Citizen Observer does not take part in any of the communication that is directed through their platform in anyway, as they do not monitor, filter, or address the tips that travel through the application. Because it has been established that a publisher takes part in “reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content[,]” Mr. Doe asserts that it is impossible for Citizen Observer to be immune as a publisher and/or speaker of Mr. Roe’s posts when it acts as a passive message board and does not review, edit, or monitor what posts are published on its platform. The Court finds that Mr. Doe’s claims do not treat Citizen Observer as a publisher and therefore it is not immune from his state-law claims.

No. Just no. Section 230 protects the decision not to edit (a leave-up decision) just as much as the decision to edit (remove). And “conduits” get just as much Section 230 protection as web hosts. For example, IAPs aren’t liable for third-party content flowing through their network (230’s definition of ICS expressly includes IAPs). So this is clearly wrong. Let’s hope the court gets on track in the next round.

Chabot v. Frazier, 2025 WL 2164002 (Tex. Ct. App. July 30, 2025)

Chabot contends Frazier’s claims for defamation relating to Chabot’s republication of the December 2023 DMN and WFAA.com articles are barred by section 230 of the Communications Decency Act (the CDA)….Simply put, the CDA generally bars defamation and libel claims against an entity that merely passively permits the publishing (or, here, the republishing) of another’s content. GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 755 (Tex. App.—Beaumont 2014, pet. denied). Chabot maintains that the website is a provider of an interactive computer service as defined by the CDA, that the content at issue was provided by another information content provider, and Frazier’s allegations improperly seek to treat Chabot as a publisher of the content posted on the website

Frazier argues that Chabot is not entitled to immunity for his publication of the 2023 WFAA.com article because Chabot did not act neutrally when he republished the article under the headline “Collin County Rep. Fred Frazier Dishonorably Discharged from DPD” after he had been informed of the article’s inaccuracies and after WFAA had published an updated and corrected article. Frazier asserts that instead Chabot acted as an information content provider by republishing the article.

Under the limited record here and viewing the evidence in the light most favorable to Frazier, we conclude Chabot did not establish as a matter of law immunity under the CDA

Ugh, this line: “the CDA generally bars defamation and libel claims against an entity that merely passively permits the publishing (or, here, the republishing) of another’s content.” The phrase “passively permits the publishing” is gibberish. Publishing is never passive!

In a footnote, the court adds “Where a defendant contributes to and shapes the
content of the information at issue, there is no immunity under the CDA.” I’ve complained before about the nonsensical and illogical “content shaping” exception to Section 230. Seeing this bad meme perpetuate is painful.

This case seems to cover some of the same ground as the D’Alonzo case from 20 years ago, which is so old that the lawyers probably had no idea it existed. I’ve repeatedly posted about how 230 can apply to verbatim content republication before. Too bad the court had no idea.

Stearns v. Google Inc., 2025 WL 2391555 (N.D. Cal. Aug. 18, 2025)

He alleges that he performed a Google search on May 11, 2019, which unwittingly returned images of child pornography which formed the basis of federal charges that were subsequently field against him. Plaintiff was convicted and sentenced to 11 years….

section 230 of the CDA generally immunizes entities like search engines from liability for claims involving how these entities do or do not moderate content created by others….The CDA would preclude any claim like plaintiff’s even if he stated a claim under state law [cite to Ginsberg v. Google]

Riganian v. LiveRamp Holdings, Inc., 2025 WL 2021802 (N.D. Cal. July 18, 2025)

This is a class-action lawsuit alleging “LiveRamp has tracked, compiled, and analyzed vast quantities of their personal, online, and offline activities to build detailed ‘identity profiles’ on them for sale to third parties.” With respect to Section 230:

“Plaintiffs are asking LiveRamp ‘to moderate its own content.'”
“CDA immunity does not apply when the defendant contributes to or shapes the content at issue.” Ugh, the content “shaping” meme again….
“The Data Marketplace does not consist only of user-generated content…[LiveRamp] is the ‘information content provider’ of the [Data Marketplace] dossiers because it is ‘responsible, in whole or in part, for the creation or development of’ those dossiers.”

U.S. v. EZLynk, SEZC, 149 F.4th 190 (2d Cir. August 20, 2025)

The district court ruling in this case was so interesting that I based my Fall 2024 Internet Law final exam around it.

EZ Lynk is a type of app store to obtain apps (called “tunes”) to customize cars. The app store includes many defeat device apps designed to overcome the manufacturer’s emission control efforts, i.e., to run a more polluting car. The district court ruled that the app store qualified for Section 230 protection. The Second Circuit disagrees.

The Second Circuit credits the following allegations that EZ Lynk materially contributed to the alleged unlawful activity:

EZ Lynk “directly and materially” contributed to the development of delete tunes disseminated through the EZ Lynk System. It worked with delete-tune creator PPEI “in the early stages of testing the EZ Lynk System[,] approximately two years before the system’s launch in 2016,” and again previewed the updated device before its launch in 2018. Several of the posts cited in the Complaint explicitly refer to drivers installing PPEI-provided delete tunes through the EZ Lynk System, and PPEI jointly administers the EZ Lynk Forum Facebook group, helping drivers troubleshoot the installation of their delete tunes using the EZ Lynk System. The Complaint also alleges EZ Lynk “work[ed] with” and “collaborated with” delete-tune creator GDP Tuning before the EZ Lynk System was publicly available

OK, but the apps/tune are still third-party content, no? Relying heavily on the problematic LeadClick case, the Second Circuit says the allegations:

raise the reasonable inference that Appellees deliberately courted – i.e., “recruited” – delete-tunes creators and “collaborated with” them to ensure that their delete tunes would be compatible with and available to users of the EZ Lynk System. Under that inference, Appellees “did not merely act as . . . neutral intermediar[ies]” between the delete tunes creators and vehicle owners “but instead ‘specifically encourage[d] development of what [was] offensive about the content.’”

I mean, isn’t this is what all app stores do? To ensure good consumer experiences, app stores provide a set of technical specifications for compatible apps, review the apps for various standards, and otherwise exercise content moderation over the apps’ availability. So does this mean that all app stores are not “neutral intermediaries” (ugh) of any “illegal” apps available in their app stores?

I think the court was likely responded to the problematic nature of defeat devices and not intending to doom all app stores, but the sloppy handling of Section 230 for app stores leaves plenty of room for future plaintiff mischief.

Gibralter LLC v. DMS Flowers, LLC, 2025 WL 2623293 (E.D. Cal. Sept. 11, 2025)

This is a trademark dispute between floral businesses that spilled over to Teleflora, which provides an ecommerce platform.

With respect to the state law claims (“Unfair and Deceptive Trade Practice, Common Law Trademark Infringement and Unfair Competition, and Trademark Dilution and Injury to Business Reputation”), the court says Section 230 applies to Teleflora’s liability:

The FAC alleges that Teleflora’s online platform enables third parties to sell their products through “estores” on an affiliate network such that Teleflora qualifies as an “interactive computer service provider” under the CDA…. [Cite to the Parts.com v. Yahoo decision from a dozen years ago.]

A party is not an information content provider outside the ambit of CDA
immunity unless it creates or develops the offending content in whole or in part. Plaintiffs’ allegations establish at most that Teleflora controls, supervises, monitors, and profits from the offending content – not that it created or developed that content.

The court applies Section 230 to state IP claims but it spends no time justifying that decision, which is correct in the Ninth Circuit but not well-accepted elsewhere.

UPDATE: The court also dismissed the state law claims in the Second Amended Complaint on the same grounds:

At most, the allegations suggest that Teleflora operates the online platform that enables third party floral partners to sell their products through its online partnership program. In alleging that Teleflora “publishes” each floral partner’s business information, promotes these businesses, “monitors and inspects” the partnership network, and “actively and routinely publishes, codes, and updates substantial content and placement of content on the floral partner’s estore[s],” Plaintiffs show that Teleflora operates akin to an “interactive computer service provider” under the CDA rather than a party that creates or develops infringing content outside the ambit of the CDA

2026 WL 194328 (E.D. Cal. Jan. 26, 2026)

Bodin v. City of New Orleans, 2025 WL 2589590 (E.D. La. Sept. 8, 2025)

This is a challenge to New Orleans’ rules for short-term rentals. The court rejects Airbnb’s challenges based on Section 230 (emphasis added):

The 2024 Ordinance requires Airbnb to verify the registration status of each listing “before any booking transaction is facilitated,” and to reverify each listing “at least every 30 days of the prior verification” and whenever Airbnb “knows or should know” that any data relevant to verification has changed, essentially requiring Airbnb to monitor the registration status of all of its New Orleans listings to identify changes that are potentially material to verification. Airbnb alleges that by forcing it to engage in verifying the registration status of a third-party listing, the 2024 Ordinance treats Airbnb as a publisher of third-party content in conflict with § 230. Airbnb claims that the 2024 Ordinance runs further afoul of § 230 by effectively requiring Airbnb to remove listings when it cannot verify that the host is eligible to list the property….

The 2024 Ordinance does not operate against Airbnb’s role as a publisher of third-party STR listings but rather against its conduct as a booking agent between users and hosts for which Airbnb earns a fee. The 2024 Ordinance does not require Airbnb to monitor or delete anything from its website. Airbnb remains free without penalty to allow as many unlawful STR listings on its website as it chooses to. The 2024 Ordinance simply precludes Airbnb from collecting a fee, in other words profiting, for booking an STR transaction that includes a non-permitted (unlawful) STR. Airbnb may very well determine that for its business model the most effective means of compliance will be to review its website so as to remove unpermitted host listings from its site but the 2024 Ordinance does not compel that action….. Because the verification requirement of the 2024 Ordinance does not treat Airbnb as the speaker or publisher of third party content, the CDA is not implicated.

Oh come on.

Greater Las Vegas Short-Term Rental Association v. Clark County, 2025 WL 2608146 (D. Nev. Aug. 28, 2025)

The regulation at issue “directly imposes verification, monitoring, and deactivation obligations on hosting platforms.” The court accepts Airbnb’s Section 230 challenge using a Calise duties analysis:

The Court agrees with Plaintiffs that the “duty to monitor” springs from Airbnb’s status as a publisher of host listings….platforms like Airbnb are only required to monitor the content of host listings if they are licensed to do business in Clark County… [Note: I didn’t understand this discussion]

Plaintiffs contend unlike the Santa Monica ordinance in HomeAway, the Clark County Ordinance requires that postings be “verified prior to publication,” “monitored to ensure they contain certain information,” or “removed when certain conditions are met.” The Court is persuaded that these requirements distinguish the Clark County Ordinance from the ordinance at issue in HomeAway. Moreover, at the Hearing, Defendant conceded that the provisions in question do impose a duty on platforms like Airbnb to monitor content.

It looks like the plaintiffs win here because Clark County imposed liability upon publication, rather than only at the time of booking?

Onwuka v. Twitter Inc., 2023 Cal. Super. LEXIS 113496 (Cal. Superior Ct. Dec. 12, 2023)

The court summarizes: “plaintiff is unhappy with defendant’s editorial and/or publishing processes” (i.e., alleging racial discrimination in its content moderation practices). In light of the Murphy v. Twitter case, this is an easy Section 230 dismissal. “Defendant’s content rules are typical publisher conduct….Defendant’s policy that required plaintiff to check a box admitting that he violated defendant’s rules to unlock his account–even if unfair or untrue–is such publishing conduct….All of the content that plaintiff claims defendant required him or others to remove (and all of the content in plaintiffs locked account) is created and posted by plaintiff and others, not defendant.”

Espinha v. Elite Universe, Inc., 2025 Cal. Super. LEXIS 42223 (Cal. Superior Ct. July 24, 2025)

In support of the first cause of action, Plaintiffs allege Defendant operates a website on which a user accused Plaintiffs of working “to protect and advance the interests of a network of illegal . . . scam artists”, and Defendant refused to remove the posts even though the user who made them agreed to do so. As Defendant points out, the Communications Decency Act of 1996 immunizes Defendant from liability…Even if Plaintiffs allege actionable claims for defamation against the person who made the posts on Defendant’s website, Defendant is not liable for maintaining the website. Moreover, “[w]here. . . an internet intermediary’s relevant conduct in a defamation case goes no further than the mere act of publication—including a refusal to depublish upon demand, after a subsequent finding that the published content is libelous—section 230 prohibits this kind of directive.”…

Plaintiffs also rely on Liapes v. Facebook (2023) 95 Cal.App.5th 910, which is not on point. In that case, the Court of Appeal held the Communications Decency Act of 1996 does not immunize a social media platform acting as an information content provider by requiring users to disclose their age and gender to design and create an advertising system which required advertisers to exclude delivery to users based on those characteristics. In the instant case, Plaintiffs’ allegations are simply Defendant permitted a user’s post to remain on its site. Plaintiffs do not allege facts to show Defendant acted as an information content provider—”that is, someone ‘responsible in whole or in part, for the creation or development’ of the content at issue.”

Day v. TikTok, Inc., 2022 U.S. Dist. LEXIS 34380 (N.D. Ill. Feb. 28, 2022)

The plaintiff complained about videos uploaded by another user. An obvious Section 230 case. A meritless FOSTA workaround also failed.

Amy v. Apple, 5:24-cv-08832-NW (N.D. Cal. Oct. 15, 2025)

This is a putative class action brought against Apple, Inc. by individuals depicted in Child Sexual Abuse Material (“CSAM”) shared using Apple’s technology and hosted on Apple’s servers. Named Plaintiffs Amy and Jessica (using pseudonyms) allege violations under 18 U.S.C. §§ 2252, 2252A, and 2255 as well as violations of products liability and negligence state laws….

Plaintiffs allege that Apple’s failure to implement NeuralHash or any other child safety features capable of detecting known CSAM on its products caused Plaintiffs to be injured because CSAM depicting them was received, possessed, and distributed using Apple products. Apple could have designed its products to protect and avoid injury to child victims of known CSAM, and Apple knew or should have known that CSAM depicting Amy and Jessica would continue to spread through Apple’s products without Apple implementing proactive detection technologies. Despite this knowledge, Apple avoided design changes that would have increased safety and reduced the injury to CSAM victims. 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.

The court points to the Doe v. Apple decision, which alleged similar claims on similar facts, and “Plaintiffs rely on the same arguments and analyses that the Court rejected
previously.” The court points out that the plaintiffs have problems with Apple’s alleged scienter and the applicability of Section 230.

Paul v. Brattin, 2025 WL 2845390 (W.D. Mo. Oct. 7, 2025)

This is a claim that retweeting created false light liability:

Mr. Richard Brattin, a Missouri State Senator, reposted an X post originally authored by Deep Truth Intel. The post featured a photo of Mr. Loudermill handcuffed on the curb and stated, “The Kansas City Chiefs Super Bowl Parade shooter has been identified as 44-year-old Sahil Omar, an illegal immigrant.” Mr. Brattin’s repost added “@POTUS CLOSE THE BORDER.” Contrary to Mr. Brattin’s post, Mr. Loudermill was not an illegal immigrant or connected to the shooting.

The court correctly says that Section 230 doesn’t apply to Brattin’s addition (“@POTUS CLOSE THE BORDER”) because that’s first-party content. However, Brattin’s addition isn’t false light on its own or in context, so the court should have dismissed the claim. Instead we get this:

Mr. Brattin created his own X post for which Ms. Paul seeks to hold him liable. There are no allegations about the content of the Deep Truth Intel post, only Mr. Brattin’s. The face of the Amended Complaint does not seek to hold Mr. Brattin liable for the Deep Truth Intel post. Ms. Paul’s false light claim is plausible on its face. Mr. Brattin is not entitled to immunity under the CDA for his own post

Paul v. Hoskins, 2025 WL 2845388 (W.D. Mo. Oct. 7, 2025)

Same facts as the prior squib, except a DIFFERENT Missouri State Senator, Hoskins, retweeted the same post with this caption:

Fact – President Biden’s @POTUS open border policies & cities who promote themselves as Sanctuary Cities like @KansasCity invite violent illegal immigrants into the U.S. Fact – Violent illegal immigrants with guns are exactly why we need the 2A. I have the right to protect my … show more

[What is up with all of the Missouri State Senators grandstanding about immigration using false facts? I know the answer to that question, but it’s still disgusting.]

In this case, Hoskins’ caption actually referred to violent illegal immigrants, so the false light claim is more plausible. It too survived a 230 dismissal attempt.

Byrd v. Google LLC, No. 2023 L 013005 (Ill. Cir. Ct. October 31, 2025)

Plaintiff has failed to provide facts as to how Google has defamed him or violated his right of publicity. Google does not deny that these articles pop up when a search is made for Plaintiff, but Google is not the party that has written these articles or published the pictures. Additionally, the Court finds that under United States Code, “no 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. Thus, the Court finds Google cannot be treated as the publisher of articles that have been published online about Plaintiff, even if they may show up when using their services.

Zenon v. Google, Inc., No. CV-014025/23 (N.Y. Civil Ct. March 25, 2024)

This is a scammy ads case. “As to Google, plaintiff alleges that it allowed Reckon to advertise on its site; that it received payment from Reckon for advertising; and that it did nothing to prevent, alter or remove the content of Reckon ‘s advertisement. Yet these are precisely the editorial functions immunized by Section 230.”

Nordheim v. LinkedIn Corp., 2025 WL 3145293 (N.D. Cal. Oct. 21, 2025)

Another failed pro se account termination case, this time against LinkedIn:

According to Plaintiff, an individual, Aaron Laks, made harmful and false accusation against Plaintiff on LinkedIn. Plaintiff reported Laks’ accusations to LinkedIn but LinkedIn failed to intervene or investigate and, instead, suspended Plaintiff’s account without cause. Plaintiff also alleges that “Linkedin still retains and displays defamatory content” and that LinkedIn banned Plaintiff “due to false reports”. He claims all stem from his alleged harm that he incurred as a result. Plaintiff thus seeks to hold Defendant liable as a publisher for failing to remove content posted by a third-party and for temporarily barring Plaintiff from accessing or controlling his own content….

the content he is concerned with was either created by Laks or by Plaintiff, not LinkedIn…Although Plaintiff complains about the actions LinkedIn took or failed to take with respect to the content created by Laks, or by temporarily preventing Plaintiff from responding to that content, he does not allege any content created by LinkedIn.

Mann v. Meta Platforms, Inc., 2025 WL 3255009 (N.D. Cal. Aug. 18, 2025)

The allegations in Mann’s amended complaint are substantially identical to the allegations in his initial complaint – Meta exposed him to third-party content on Facebook relating to drug use that Mann found distressing….for the reasons stated in the court’s OSC, § 230 bars Mann’s claims.

Mann’s citation to the testimony of Meta’s CEO does not compel a different result. A statement that “Facebook no longer serves its original purpose” and is “now a showcase where the algorithm is in charge” does not render Meta responsible for third-party content on the Facebook platform. This does not amount to a specific promise to remove meth-related third-party content such that § 230 immunity does not apply.

Atlas Data Privacy Corp. v. We Inform LLC, 2025 WL 2444153 (D.N.J. Aug. 25, 2025)

This is a challenge to “Daniel’s Law,” a notice-and-takedown law that permits certain government officials and family members to remove their contact information from online sites. With respect to Section 230:

The court at this early stage has little information about the activities of these four defendants relevant to CDA immunity…At oral argument on the motions to dismiss, defendants candidly conceded that they do not operate platforms where third parties simply post information. Defendants seek out and compensate others for providing the home addresses appearing on their websites.

Even if defendants do not create the home addresses and unlisted telephone numbers of covered persons, the court has insufficient evidence in the record to determine whether they develop it. Defendants We Inform, Infomatics, and The People Searchers acknowledge in affidavits that they “provide comprehensive reports” to their consumers. Smarty similarly attached to its motion screenshots of its website, which state that Smarty “meticulously craft[s] personalized solutions tailored to every facet of [its] customers’ business needs.” The screenshots also provide that its service will “[f]ill in missing data & unlock additional information about any validated street address” that a user searches. To determine whether defendants develop the information in issue and whether they have immunity under the CDA must await discovery.

Niedziela v. Viator Inc., 2025 WL 2732916 (C.D. Cal. Sept. 25, 2025)

A woman suffered serious personal injuries when a tree branch fell on her on a tour booked through Viator (a TripAdvisor subsidiary). Viator defended on Section 230. The court says “the right on which Niedziela’s claim is premised relates to Defendants’ status as publishers of the Waterfall Gardens Tour listing, not a separate or independent right.” Then, citing Calise, the court says:

to the extent that Niedziela’s negligence claim is premised upon Defendants’ failure to warn, Section 230 does not immunize Defendants from liability because Niedziela does not seek to hold Defendants liable for failing to vet or monitor third-party conduct. To the extent that Niedziela’s negligence claim is premised upon Defendants’ advertisement of the Waterfall Gardens Tour or the inclusion of the Waterfall Gardens Tour on the Viator website, however, Niedziela does seek to hold Defendants liable as speakers or publishers, and Section 230 applies

The court also says Viator may have materially contributed to the listing’s content because it added a certification badge (the “Badge of Excellence”) to the listing:

The Court is not persuaded that the Badge of Excellence is an aggregate metric akin to that in Kimzey. The star rating system in Kimzey was a pure aggregation metric that did not include Yelp’s own impressions about the quality of a business. Niedziela, in contrast, alleges that the Badge of Excellence reflects Viator’s evaluation of the quality of the Waterfall Gardens Tour, which included conclusions that Viator drew as a part of its intense vetting process. To the extent that Defendants dispute the truth of Niedziela’s allegations about the criteria reflected in the award of the Badge of Excellence or the role of Viator’s vetting process in deciding whether to award the Badge of Excellence to a tour listing, those disputes are not appropriate for resolution at this stage of the litigation….

even if Defendants are correct that the Badge of Excellence was awarded based upon “objective” criteria such as whether a tour permitted mobile booking, those criteria reflected Viator’s determinations about what conditions affected the quality of a tour experience, not third-party determinations. Thus, unlike a neutral aggregation tool, the Badge of Excellence credited particular postings based upon Viator’s assessment of those postings….for the purpose of the instant Motion, the Badge of Excellence constitutes Viator’s material contribution to the Waterfall Gardens Tour listing, such that Defendants can be held liable as creators of that content even if other content in the listing was provided by a third party

Terms like “neutral aggregation tool” are a good tipoff that the court has lost the jurisprudential plot.

Also, “as a matter of law, “Viator’s Terms of Use were not reasonably conspicuous, and Niedziela is not bound by the exculpatory clause contained therein.”

In re Apple Inc. App Store Simulated Casino-Style Games Litigation, 2025 WL 2782591 (N.D. Cal. Sept. 30, 2025)

Prior blog post. The court sets up the facts:

As Plaintiffs explain, each Defendant operates an app store through which social casinos are available for download. Each Defendant also requires apps downloaded from their respective stores to use their respective payment processing system for in-app purchases. Each Defendant then takes a thirty percent cut of every in-app transaction. Whenever Defendants process a virtual chip purchase in a social casino, say Plaintiffs, they are contributing to the problem by unlawfully facilitating illegal gambling transactions

The court previously denied Section 230 for payment processing, but authorized interlocutory appellate review, which the Ninth Circuit declined. The defendants took another run at Section 230, citing the intervening Calise precedent. It doesn’t change the answer:

The crux of the statutory claims in these cases is that Defendants were prohibited from processing in-app payments for social casino apps. Payment processing is not an act of publishing. It is a transaction, one that is “distinct, internal, and nonpublic.” Of course, payment processing activities may be an important part of publishing activity. But that does not make payment processing a publishing activity. Instead, it is better viewed as a generic business activity common to virtually all companies, publishers or not, just like hiring workers or paying taxes…Limits on Defendants’ ability to process certain payments does not interfere with Defendants’ ability to publish third-party apps by offering them in their app stores or by making in-app content available. One can understand this point by recognizing that the duties imposed by these statutes apply equally to dedicated payment processors such as PayPal, Square, and Stripe even though those companies are plainly not publishers. A duty that applies equally to non-publishers does not treat a defendant as a publisher.

The defendants argued that they would have to monitor the activities of the apps to avoid liability. The court is unmoved:

Defendants can choose to stop offering their own payment processing and allow app developers to use the services of dedicated third-party processors. In this way, Defendants can avoid all the issues raised by Plaintiffs’ claims without so much as glancing at any app’s content….

monitoring does not become necessary just because it “would be the best option from a business standpoint” or would be the “most practical compliance option.”…Perhaps if the termination of their payment processing services would pose an existential threat to Defendants, or if it would prevent Defendants from engaging in their publishing activities, then such termination would not be an acceptable alternative to monitoring.

I wonder about any opinion where the court’s answer is essentially “you can avoid liability by exiting the industry.”

The defendants argued that they only provide neutral tools (ugh). The court responds:

While the Ninth Circuit has recognized a neutral tools analysis for Section 230, it has consistently situated that analysis under the third prong of the immunity test—whether content is provided by a third party. This is because the neutral tools analysis informs whether the defendant is a “creator or developer” of content, i.e., whether the content is the defendant’s or another’s.

I’ve repeatedly criticized the “neutral tools” doctrine as an oxymoron, and this narrowing construction by the court is even more dubious. I wonder how the Ninth Circuit will view this doctrinal move by the court.

The court certifies the case for interlocutory appeal once again. It points out in detail various doctrinal problems with Calise, essentially baiting the Ninth Circuit to fix the doctrinal mess it made in Calise. This case will reach the Ninth Circuit eventually, one way or another.

Google LLC v. Latam Airlines Group S.A., 2025 WL 2721690 (N.D. Cal. Sept. 24, 2025)

This case involves two videos that a user uploaded to YouTube that criticized Latam Airlines. In 2018, a Brazilian court held the videos defamed Latam and ordered their removal from YouTube Brazil. In a series of rulings from 2024 and 2025, the Brazil Supreme Court ordered the videos to be removed globally. Google sought relief in US court that it doesn’t have to comply with the global removal order in the US.

The court says Google’s Section 230 argument can support its preliminary injunction request:

YouTube is an ICS provider.
The videos came from a third party.
The Brazilian global removal order would treat Google as the publisher of third-party content. Cite to Google v. Equustek.

The court also says the SPEECH Act protects Google because Brazilian defamation law doesn’t require plaintiffs to show actual malice.

Fleites v. MindGeek S.A.R.L., 2025 WL 2902301 (C.D. Cal. Sept. 25, 2025)

This is a very long FOSTA opinion involving CSAM on Pornhub. Citing Doe v. MindGeek (C.D. Cal. 2021) and Doe #1 v. MG Freesites (N.D. Ala. 2022), the court denies a Section 230 defense because MindGeek is partially responsible for the content development:

Plaintiff claims that MindGeek reviewed, uploaded, categorized, tagged, optimized for user preference and disseminated the videos of Plaintiff. MindGeek also purportedly uploaded the optimized, tagged, and categorized video to its other tubesites. While the Court agrees that Plaintiff’s pleadings as to MindGeek’s involvement in the videos as specific to her leave more to be desired, the Court finds that these allegations paired with the general allegations found in the rest of the SAC detailing MindGeek’s tools that are
not neutral in nature but rather encourage criminality are sufficient at this stage of the litigation when all reasonable inferences are drawn in favor of Plaintiff.

With respect to the FOSTA beneficiary liability claims, the court says Doe v. Reddit only governs the 230 FOSTA exception, which isn’t applicable because the court rejected Section 230 on other grounds. Thus, the court will accept constructive knowledge arguments regarding the prima facie elements that would otherwise be foreclosed if the FOSTA 230 exception was governing the case.

R.Q.U. v. Meta Platforms, Inc., 2025 Cal. Super. LEXIS 70297 (Cal. Superior Ct. Nov. 5, 2025)

An outgrowth of the state court social media addiction case.

the fact that a design feature like “infinite scroll” led a user to harmful content does not mean that there can be no liability for harm arising from the design feature itself. Here, there is evidence that the infinite scroll feature itself caused some harm to Moore…Moore has testified that the “endless scroll” feature has caused her to use Defendants’ applications much more than she would have without that feature

Gas Drawls, LLC v. Whaleco, Inc., 2025 U.S. Dist. LEXIS 254999 (C.D. Cal. Dec. 5, 2025)

The plaintiff enforces the IP rights of rapper Daniel Dumile Thompson, better known as MF DOOM. This is a trademark enforcement case. With respect to the state IP claims:

Plaintiff characterizes Temu as an information content provider on the ground that it is “responsible” for the product listings and allegedly alters and advertises them. These conclusory assertions do not plausibly allege that Temu is a content provider for the reasons discussed above—i.e., Plaintiff provides no factual basis to infer that Temu materially contributed to the alleged infringement. Thus, the state-law intellectual property claims, as alleged, are barred under § 230.

Also interesting:

Plaintiff contends that Temu is directly liable because it knowingly offers “MF DOOM” as a search keyword that triggers the display of the infringing listings. But Plaintiff does not explain how Temu “offered” the keyword, and the FAC itself states that Plaintiff’s counsel found the listings by typing “MF DOOM” into the search bar. It is therefore unclear that Temu did anything other than provide a search tool for its platform.

State v. TikTok Inc., 2025 WL 2399525 (N.C. Bus. Ct. Aug. 19, 2025)

The North Carolina AG sued TikTok for addicting minors. The court starts out with a standard anti-230 trope:

when section 230 says not to treat an internet platform “as the publisher or speaker of” others’ content, it means not to burden the platform with traditional publisher liability. The statute’s reach ends there. It does not relieve internet publishers “from all potential liability” or provide “an all purpose get-out-of-jail-free card for businesses that publish user content on the internet.”

TikTok doesn’t qualify for Section 230:

Neither of the State’s theories seeks to hold ByteDance liable for monitoring, altering, or removing user content, or for failing to do those things. The thrust of the unfairness theory is that ByteDance purposely designed TikTok to be addictive to minors. If what the complaint says is true, TikTok is packed with features—autoplay, endless scrolling, social rewards, and more—that exploit minors’ developmental immaturity and neurological susceptibility to intermittent, variable rewards. And TikTok addiction allegedly disrupts healthy sleep habits and social interactions, causing insidious psychological harms to teens and children. This theory has more in common with products liability than publisher liability, resting as it does on an alleged duty not to design and offer a product that endangers a vulnerable population…

It is no answer to say, as ByteDance does, that addicted minors spend their time on TikTok viewing third-party content. ByteDance’s business is, after all, to host and display user videos. Nearly everything it does is connected in some way to its users’ content. But it and other social-media platforms “continue to face the prospect of liability, even for their ‘neutral tools,’ so long as plaintiffs’ claims do not blame them for the content that third parties generate with those tools.” The State’s unfairness theory neither blames ByteDance for its users’ content nor aims to hold it accountable in its capacity as a publisher of that content. The theory instead seeks to hold ByteDance liable “for its own injurious conduct” in “creating and employing tools to addict young users.”…

the State’s unfairness theory treats ByteDance as a product designer, not a publisher, and faults it for offering a combination of features and social rewards that foster compulsive use by minors. Unlike Bride, ByteDance’s liability does not turn on user content or its failure to remove or suppress that content. This sort of anti-addiction claim therefore does not implicate section 230…

Section 230 gives internet platforms wide latitude to moderate content. But it does not shield them from liability for breaching their promises or misrepresenting their content-moderation activities.

Relying on Justice Barrett’s Moody concurrence, the court also rejects the First Amendment defense: “The algorithm does not convey a message by its programmer; it simply bows to user preferences and propensities….a reasonable person would understand TikTok’s video feed to reflect a given user’s content choices as opposed to ByteDance’s own creative expression or editorial judgment.” So much judicial ignorance about how algorithms work!

The court concludes:

If the State’s allegations are true, ByteDance has intentionally addicted millions of children to a product that is known to disrupt cognitive development, to cause anxiety, depression, and sleep deprivation, and (in the worst cases) to exacerbate the risk of self-harm. Federal law does not immunize this conduct, the First Amendment does not bless it, and North Carolina’s laws and courts are not powerless to address it.

Patterson v. United Network for Organ Sharing, 2022 WL 23024110 (D.S.C. March 7, 2022)

A patient sued the organ donor matching network for facilitating a liver match with the wrong blood type. The court rejects the network’s Section 230 defense:

the Court declines to find that United Network is entitled to blanket immunity under the CDA, as it appears to the Court that United Network’s duties clearly exceed those of an interactive computer service provider as contemplated by the CDA. In other words, accepting all well-pleaded allegations of Plaintiff’s complaint as true, matching Plaintiff with an incompatible donor goes beyond merely hosting a computer service that parties use to post information.

Martin v. Care.com, Inc., 2025 IL App (1st) 250913-U (Ill. Ct. App. December 15, 2025)

Care.com helps families hire in-home caregivers. Care made numerous public statements touting the safety of its caregivers, including doing background checks. However, Care didn’t screen for past incidents of child abuse. After Care’s referral, the plaintiffs retained Dunwoody as a nanny. Allegedly, Dunwoody had a history of child abuse and injured the plaintiffs’ baby. Dunwoody blamed the dad for the baby’s injuries, which had major consequences for the dad. Eventually, the state investigation exonerated the parents. The parents sued Care.com for its promises about screening. The district court dismissed on Section 230 grounds. The appeals court reverses.

With respect to Care’s marketing statements:

The corresponding obligation of Care.com is not to make misleading statements to consumers in the solicitation of business. Complying with this duty certainly cannot be said to require Care.com to moderate what caregivers communicate about their backgrounds through its platform….Care.com’s ability to satisfy its statutory duty under this cause of action stems from the statements Care.com itself chooses to make to consumers on its website. Accordingly, success on this cause of action does not require it to be treated as a publisher or speaker of content posted on its platform by third parties.

The negligent misrepresentation claims reach the same place:

it is Care.com’s own undertaking to have background checks performed on all potential caregivers and to inform customers of this when soliciting their business. Nothing other than a business decision requires Care.com to do this; it could simply allow potential caregivers to use its platform to communicate their background and qualifications to other customers and place the entire burden of conducting background checks on customers. If Care.com had done only the latter, then arguably publisher liability would be the only source of a duty from which liability could be imposed in a negligence claim. However, because Care.com undertook to have background checks performed on all potential caregivers and to make statements to customers about what these background checks entailed, its duty to customers such as the plaintiffs derives from its own actions and statements in this regard. In our view, Care.com’s ability to comply with this duty does not require it to moderate content or communications made by third parties through its Internet platform. Accordingly, success on this claim does not require it to be treated as a publisher or speaker in contravention of section 230(c)(1).

The court distinguishes Doe v. Grindr because

in totality, the statements by Care.com on its website are more specific than the statement at issue in Doe. More importantly, though, we find the statements at issue in this case to refer to Care.com’s own undertaking to ensure that potential caregivers undergo background checks prior to interacting with other customers. When we view these in their light most favorable to the plaintiffs, these statements simply are not about moderating content that is posted to or communicated through an Internet platform. For example, when Care.com states that “[w]e ensure potential account holders are screened and evaluated against our conduct and eligibility standards” by being “background-checked through our CareCheck process,” the court views this as a statement about Care.com’s own undertaking to its customers, which has nothing to do with the actions of a publisher concerning third-party content posted on the Internet.

The court rejects the argument that Section 230 applies if publication of third-party content was a but-for cause.

Sosa v. AT&T, 2025 WL 3719229 (N.D. Cal. Dec. 23, 2025)

“The only conduct Sosa complains of by YouTube is YouTube’s decisions regarding whether to takedown his video, when to put his video back up, and what ranking to give his video. These are ‘quintessential’ publishing decisions giving YouTube immunity to state law tort claims under Section 230.”

Kostov v. Go Daddy LLC, 2025 Ariz. Super. LEXIS 1282 (Ariz. Superior Ct. Oct. 8, 2025)

On the merits, Defendants are mostly correct: the Communications Decency Act does bar the majority of this lawsuit. Section 230 of the CDA provides immunity to interactive computer services providers against liability arising from content created by third parties. Rigby v. GoDaddy Inc., 59 F.4th 998, 1007 (9th Cir. 2003). " data-highlevelcontenttype="urn:hlct:5">the Communications Decency Act does bar the majority of this lawsuit. Section 230 of the CDA provides immunity to interactive computer services providers against liability arising from content created by third parties. This includes requests for injunctive relief, such as removal of content.

That immunity applies because (a) Defendants provide or use an interactive computer service, (b) Ms. Kostov’s claims, for the most part, treat Defendants as the publisher or speaker of the information, and (c) the information comes from another content provider. Registering domains and hosting websites fall into the first prong. Ms. Kostov’s request for damages and injunctive relief show that she is treating Defendants as the speaker and/or publisher of the harmful statements. And, as Ms. Kostov’s complaint suggests, Defendants did not create any of the content.

The CDA, therefore, bars nearly all of Ms. Kostov’s claims. That includes defamation, negligence, cyberstalking, cyber-harassment, and injunctive relief.

What it does not clearly bar, however, is the demand for registrant information. That request appears in the recently filed amended complaint. Although Defendants addressed the amendments in their reply, this request was overlooked. Because Defendants have not addressed it, the Court declines to dismiss it.

This Court recognizes the significant difficulties Ms. Kostov has endured with the content and with efforts to have it removed. This Court, however, cannot circumvent established law, even if GoDaddy has process for reporting abuse. This Court’s order does not require GoDaddy, however, to sit idly by.

Doe v. DeLuca, 2025 Vt. Super. LEXIS 700 (Vt. Superior Ct. Dec. 15, 2025)

Doe alleges (1) “YouTube LLC is contributorily liable for the unauthorized commercial use of Plaintiff’s likeness by providing the platform and failing to remove the infringing content after notice”; and (2) “YouTube LLC facilitated the commercial use of Plaintiff’s likeness without Plaintiff’s consent, violating Plaintiff’s right to control the commercial exploitation of their identity.” These allegations treat YouTube wholly as a “publisher” or “speaker” of the videos made and posted by DeLuca. Doe effectively concedes YouTube’s status as an “interactive computer service,” and his allegations do not in any way challenge DeLuca’s status as “another information content provider.” Doe has not alleged that YouTube was “responsible, in whole or in part, for the creation or development of DeLuca’s video….

YouTube’s insertion of advertisements into DeLuca’s video does not remove Section 230 immunity for YouTube. A defendant must do more to meet the “material contribution” test.

Distinguishing Forrest v. Meta, the court adds: “Providing “neutral tools” for DeLuca to post his video does not eliminate Section 230 immunity for YouTube, where it otherwise “did absolutely nothing to encourage the posting of . . . [allegedly actionable] content.”” [insert my oft-repeated objection to the “neutral tools” phrase.]

The court acknowledges 230’s IP exception, but says the publicity rights claim is a privacy statute; and even if it wasn’t, the court would follow the Ninth Circuit’s ccBill decision to preclude state IP claims. This is a surprise move given that most non-Ninth Circuit courts have diverged from the Ninth Circuit on this point.

Despite the Calise case, the court reaches to pre-Calise precedent to find that Section 230 also applies to breach of contract claims:

Doe alleges that: (1) he “reviewed YouTube’s terms of service agreement”; (2) he “submitted a report to YouTube LLC to remove the [DeLuca] video”; (3) “YouTube LLC failed to remove the content”; and (4) “YouTube LLC failed to adhere to its own terms of service when it failed to remove the reported video.” As the cases above make clear, Doe’s allegations, while framed as a breach of contract claim, nevertheless go to the heart of YouTube’s actions as a publisher — Doe complains that YouTube published DeLuca’s videos when it should not have. Calise’s plain language shows that Section 230 applies to this sort of allegation that would “oblige[] the defendant to `monitor third-party content’—or else face liability—then that too is barred by § 230(c)(1).”

Also, “YouTube’s ToS do not create promises which it could have breached in the way that Doe alleges.”

Extra: “a now commonplace occurrence like DeLuca’s recording by cell phone of Doe in public and posting it online without more does not constitute as matter of law the sort of objectively outrageous conduct required for an IIED claim.”

BONUS: Gonzalez v. Viator Tours Inc., 2025 WL 2420943 (D. Mass. Aug. 20, 2025). A woman suffered a slip-and-fall on a third party excursion booked through Viator/TripAdvisor. Instead of relying on Section 230, the court dismisses the case on prima facie grounds:

“the amended complaint does not plausibly allege that Viator or Tripadvisor were responsible for, or had control over, the operation of the catamaran tour or the placement of the ramp….Viator and Tripadvisor had no duty to take reasonable care in the operation of the Sunfos tour because Gonzalez does not allege that they had a role in, or control over, its operation”
No duty to warn because no special relationship.
No negligent selection claim outside of employment/IC relationship. Also, the complaint didn’t allege that “Sunfos was an unsafe or inexperienced catamaran operator” or “why Viator or Tripadvisor knew or should have known Sunfos to have such a reputation.”

UPDATE: Cox v. CoinMarketCap OpCo LLC, 2026 WL 445010 (D. Ariz. Feb. 17, 2026):

Plaintiff sufficiently alleges that CMC is an information content provider. Plaintiff alleges that CMC “artificially suppressed HEX’s value” and “inflat[ed] the price of one or more other cryptocurrencies.” At this juncture, this is sufficient to establish that CMC did more than passively display content created by third parties. However, this argument is not altogether foreclosed. Accordingly, § 230 does not affect the outcome of this Order.

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District Court Again Rejects Plaintiffs’ Attempts to Manufacture Common Law Notice-and-Takedown Duties–Bogard v. TikTok

Eric Goldman — Tue, 23 Dec 2025 16:23:05 +0000

This is a quirky lawsuit designed to subvert Section 230, the First Amendment, and traditional common law. I previously summarized the case:

This lawsuit purports to focuses on the allegedly defective operation of the services’ reporting tools, but the plaintiffs’ goal was to hold the services accountable for their alleged inaction in response to some reports. In other words, the plaintiffs are trying to use venerable legal doctrines to create a common-law notice-and-takedown scheme.

The court previously dismissed the case. Prior blog post. The plaintiffs filed an amended complaint that contains few new fact allegations. Instead, the plaintiffs tried a different framing of those facts. The court summarizes the gist: the plaintiffs “challenge only Defendants’ automated reporting tools and not other aspects of Defendants’ content review and reporting processes.” It doesn’t work.

Product Liability–Design Defect

“Plaintiffs contend that Defendants’ reporting tools are defective because Plaintiffs’ reports do not produce the outcomes that Plaintiffs believe they should—i.e., a determination that the reported videos violate Defendants’ Community Guidelines.” The court implies that the plaintiffs think of “reporting tools” as a kind of automated censorbot, i.e., “Plaintiffs appear to contend that each reporting tool…itself determines whether such a violation exists.”

The court is confused by the allegations because, in the end, all objections involve the content non-removal decisions: “the design defect Plaintiffs describe is bound entirely to Defendants’ content moderation decisions, including how closely the determinations of the automated reporting tools track human review decisions.” The court says California law doesn’t support this.

Negligence

The plaintiffs’ reframed theory: “by offering reporting tools and soliciting user reports, Defendants assumed a duty to review the reports, and a further duty to respond to such reports or to warn users of the danger of making reports that do not result in the removal of reported content.” The court says California law doesn’t impose this duty. However, I will note that various state and International laws are increasingly requiring such duties, such as laws imposing a mandatory explanation of content decisions (sometimes coupled with a right to appeal).

Misrepresentation

The court reiterates: “the challenged statements that merely describe content that is allowed or not allowed on the platform, or that describe Defendants’ general policies, are not “equivalent to a representation that Defendants’ platforms do not have content that violates Defendants’ policies or guidelines.””

The court says that TOS promises to remove violative content could be actionable, but the plaintiffs never alleged that they relied on these promises.

Lack of Proximate Causation

to the extent Plaintiffs allege they suffered emotional harm from watching distressing videos prior to reporting them, their independent and voluntary decision to search out such videos cannot be attributed to Defendants, and Defendants cannot be said to cause that harm. While Plaintiffs assert that they would not have used Defendants’ reporting tools had they known the tools were “defective,” Plaintiffs do not allege that they would not have searched for and watched the videos at all. Indeed, Plaintiffs allege that they are highly motivated to identify harmful content posted on Defendants’ platforms and get Defendants to remove such content.

Section 230

Citing the Calise decision, the court does a claim-by-claim analysis of Section 230 to identify the duty embedded in each claim.

Strict products liability. “the focus of Plaintiffs’ claim is that Defendants undertook a duty to moderate third-party content based on receiving reports from users via the reporting tool and then failed to accurately determine that the reported content should be removed. As such, the alleged duty that forms the basis of Plaintiffs’ product-defect claim “stem[s] from [Defendants’] status as a publisher.””

Also, “to avoid liability Defendants would need to alter their reporting tools to do a better job of moderating (i.e. removing) content reported by users, or alter their “responses” to Plaintiffs’ reports.”

The court distinguishes the confounding Doe v. Twitter decision, which excluded claims over a “reporting mechanism architecture” from 230:

Plaintiffs do not challenge the ease with which Defendants’ reporting tools may be accessed, but rather how good the reporting tools (or Defendants) are at determining whether reported content violates Defendants’ Community Guidelines and should therefore be removed. Such content moderation is “quintessential publisher conduct,” and Defendants cannot be held liable for it.

Negligence.

to the extent Plaintiffs contend that Defendants have a duty arising from Defendants’ role as manufacturers or providers of a product, and a corresponding obligation to remove content, this claim is barred by Section 230(c)(1) for the same reasons Plaintiffs’ claim 1 is barred. Likewise, to the extent Plaintiffs contend that Defendants have a duty to protect others because they assumed responsibility for creating a reporting system that reliably resulted in removal of all prohibited content, such a claim also is barred under Section 230(c)(1) because it attempts to hold Defendants responsible for their inadequate content moderation generally or for their incorrect determinations about whether content should be removed from their platforms.

The court again distinguishes Doe v. Twitter: “Unlike the negligence claim addressed in Doe I, where Twitter had a statutory duty to promptly report CSAM to NCMEC once it obtained actual knowledge of such material, Plaintiffs here identify no duty independent of Defendants’ duty as a publisher of third-party content.”

Misrepresentation.

because fulfillment of the alleged duty to not make false or misleading representations would not necessarily require Defendants to make any changes to their contention moderation practices or to any other publisher-related conduct, Section 230 would not bar Plaintiffs’ misrepresentation claims as to the three “review and remove” statements

(but these misrepresentation claims failed on their prima facie elements).

First Amendment

to the extent the Court has concluded that Defendants are entitled to Section 230 immunity for the statements and conduct Plaintiffs challenge, for the same reasons, the Court finds that such statements and conduct are also protected by the First Amendment. However, as to the three “review and remove” statements Plaintiffs challenge, the Court does not find that these statements are protected by the First Amendment.

A sub silento rejection of Anderson v. TikTok.

Implications

The court dismisses the case with prejudice, so I assume the next stop is the Ninth Circuit.

“Review and remove” statements are liability traps. Now that Calise and YOLO enable plaintiffs bypass Section 230 for any promise-based claims, services have extra reasons to scrub their site disclosures to ensure they aren’t making any statements that remotely resemble a promise related to content moderation. As this case illustrates, any description of the service’s content moderation cannot imply or promise that violative content will be subjected to any specific remedies or else courts may treat those statements as a backdoor guarantee of outcomes enforceable even by those not in privity. This is something services can fix today.

Doe v. Twitter didn’t blow up this case. The Doe v. Twitter court had no idea what it was doing when it said that 230 didn’t apply to claims over “reporting mechanism architecture.” That ruling opened the door for so many unmeritorious plaintiff arguments. Thus, the lower court here might have read that to mean that any claims over reporting functionality automatically bypass 230. That didn’t happen this time, but the Doe v. Twitter case still holds a lot of potential to cause serious mischief.

No discussion of Take It Down Act. The plaintiffs failed to create a common law notice-and-takedown system. However, since the court’s initial dismissal, Congress enacted the Take It Down Act, which provides a new statutory notice-and-takedown mechanism. The opinion doesn’t mention this development at all, continuing to leave us in the dark about how that new statutory mechanism interacts with the plaintiffs’ arguments.

Case Citation: Bogard v. TikTok Inc., 2025 WL 3637035 (N.D. Cal. Dec. 15, 2025)

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Post-Mortem of a Misguided Logo Trademark Lawsuit–LegalForce v. Internet Brands

Eric Goldman — Sat, 20 Dec 2025 18:52:50 +0000

The plaintiff in this case is LegalForce, Raj Abhyanker CEO, which run the notorious trademark registration operation Trademarkia. How notorious? Trademarkia’s own web site has a page entitled “Is Trademarkia a Scam? Debunking Hearsay,” which brings to mind the old adage (commonly attributed to Ronald Reagan) that if you’re explaining, you’re losing.

The defendant in this case is Internet Brands, which operates a portfolio of websites, including the website lawfirms.com, an online lawyer referral service.

LegalForce objected to LawFirms’ logo. The following image shows LegalForce’s logo (top), LawFirms’ initial logo (middle), and LawFirms’ revised logo (bottom) after some counseling by the judge.

I see some font and color similarities between the LegalForce and first LawFirms logo, but probably not enough to warrant a multi-year lawsuit. Certainly the case should have ended when LawFirms adopted the revised logo.

It did not. Instead, it went to a 4-day trial before Judge Alsup, who is on the cusp of retirement. In several Judge Alsup cases I’ve blogged, plaintiffs survived a motion to dismiss based on their initial story, only to get hammered when their stories don’t hold up in later proceedings. That’s exactly what happens here, producing a characteristically stinging opinion.

[I’m blogging this messy case primarily because of the discussion about search engines as a marketing channel, as well as the community’s interest in Raj’s endeavors. Some of his other appearances on the blog.]

* * *

The court runs through the standard Sleekcraft factors, comparing the LegalForce logo to the initial LawFirms logo.

Actual Confusion. “plaintiff produced zero evidence of actual confusion”:

There is zero evidence that anyone who saw an ad for defendant’s referrals service to law firms believed he was seeing an ad for plaintiff’s law firm. There is zero evidence that anyone who visited defendant’s www.lawfirms.com website, which displayed defendant’s marks, believed he was visiting plaintiff’s www.legalforce.com website. There is zero evidence that anyone who was referred to a law firm by defendant believed he was being referred to a law firm by plaintiff, or believed he was being referred to plaintiff

Marketing Channels–Web Searches.

Both plaintiff and defendant have used keyword marketing but this order finds that no single web search has returned or will ever likely return both plaintiff’s and defendant’s websites showing their marks….Plaintiff produced no credible evidence that plaintiff and defendant — specifically for the websites bearing or likely to bear the marks at issue — have bid on the same keywords or would. Defendant did not engage in “keyword squatting,” whereby a defendant’s keyword bidding makes searches for a plaintiff return results also or instead for a defendant….

Plaintiff produced no credible evidence that defendant has undertaken any effort to appear in search results for the same searches as plaintiff, or ever would…

there is no credible evidence that the service marks at issue ever have appeared side by side on the same online “shelf,” nor any credible evidence that one service mark has appeared where the other would have been expected

[For a discussion about keyword advertising and shelf space analogies, see my Brand Spillovers paper.]

To be clear, the judge enumerates many deficiencies with LegalForce’s facts, but this does not imply that changing any one of these facts would have flipped the outcome. For example, what the judge calls “keyword squatting” (a better phrase than “keyword conquesting,” but only barely) categorically isn’t trademark infringement if the plaintiff’s trademarks aren’t referenced in the ad copy (and usually isn’t infringement even if they are). See the Lerner & Rowe and Warby Parker cases. Thus, LawFirms would still have won even if it had “keyword squat” on the LegalForce trademark. (Also, this case involves logos, not word marks).

Marketing Channels–AI. At trial, Raj said that focusing on consumers’ experiences at Google search is old-school because “Your honor, Google is dead.” The “Google is Dead” meme appears to be quite popular online, but also, Google search revenue in 2024 was nearly $200B.

To shift the attention away from Google search, LegalForce argued that consumers would receive confusing AI outputs. The court responds tartly: “Mr. Abhyanker’s own thoughts on these topics shared from the witness stand were not cogent or credible.”

There’s more discussion about other marketing channels, but here’s the court’s bottom-line assessment:

there is no proof that consumers have ever seen or will ever see the service marks at issue in the same marketing channel — not side-by-side, not serially (such as after a Google search for one instead returns the other), not in any way. LegalForce and LawFirms.com are not marketed in the same places in part because they do not offer the same services.

Similarity of Services/Product Line Expansion. “For all periods placed at issue by plaintiff, www.lawfirms.com in total collected and distributed fewer than 25 trademark leads to trademark lawyers, representing less than $1,000 in revenues….For the specific November 2023 to July 2024 period when www.lawfirms.com used the accused mark, zero trademark leads and indeed zero intellectual property leads of any kind were even collected.” With less than $1k of possibly “diverted” revenues at issue in this case, what are we doing here?

LegalForce said it intended to expand into LawFirms’ lawyer referral space. The judge did not see that as credible: “Such supposed intent is rejected as false…The supposed new plans are a fanciful gimmick invented solely for trial purposes.”

Consumer Care. “People seeking referral to a trademark or intellectual property lawyer exercise moderate care. They are more mentally alert than someone grabbing a lemon-lime soda.” (I guess the judge doesn’t think Sprite consumers are very discerning?)

Mark Strength. The court says the plaintiff is better known for its notorious Trademarkia brand than the LegalForce logo, which appears only in obscure places on the website.

Defendant Intent. “The worst that could be said was that defendant neglected to do a trademark search before settling on a mark that assembled common elements in a common way.”

Mark Similarity. Plaintiff did a consumer survey showing the two logos head-to-head. The survey asked: ““If you saw the logos [below] on two different websites [whe]n searching for law firms, would you think they are connected, affiliated, or associated in any way?” The percentage answering “Yes,” we eventually learned, was 13 percent.”

At trial, plaintiff’s expert Michael Rodenbaugh suggested the confusion rate was 32%, which combined the “yes” and “maybe” answers. He then defended the conflation by retconning what the 32% number meant. The judge didn’t appreciate this, saying it “is emblematic of the lack of credibility of plaintiff’s case.”

The judge gave more credit to the defendant’s survey: “Defendant’s more methodologically robust survey showed that the bottom-line number for those likely to be confused was zero percent.” With a zero percent consumer confusion rate, what are we doing here?

The judge then excoriated Raj over the evidence about consumer confusion:

At first, he disclaimed expertise in confusion surveys, after directing the creation of one; later, he claimed the entire discipline of confusion surveys was methodologically broken, after his own creation was taken apart. What he consistently lacked was credibility. He personally sought to manipulate the survey design and then to lead his experts down a primrose path towards opining on more than what the survey could support. To the extent either expert communicated with plaintiff about the survey as plaintiff designed and undertook it, those communications were made while ignorant of relevant, material information that plaintiff withheld….

The expert witness also gets Alsupped:

Expert Rodenbaugh also destroyed his own credibility more broadly. For instance, he testified that there remained a chance that a person having seen the senior mark at a retail location more than a decade ago might still recall the mark well enough to be confused by seeing the junior mark online today. Expert Rodenbaugh had no specific foundation nor even specialized experience leading him to believe this could be true. Instead, he simply testified to the answer plaintiff wanted rather than to the truth.

I can vouch from first-hand experience that being an expert is a tough gig. However, every expert needs to do upfront diligence about their prospective client’s position and integrity, and then pay close attention to any bright flashing red warnings identified during that diligence.

Judge Alsup excoriates Raj some more:

Mr. Abhyanker then testified misleadingly under oath to having spent $10 million advertising the mark. On cross-examination it was revealed that zero of that $10 million had been spent buying ads showing the actual marks at issue. Money was spent buying ads for “Trademarkia.” This was not a half truth; this was a no truth.

There’s even more stinging criticism directed at both sides about their conduct during discovery.

The judge summarizes the evidence to show why plaintiff loses:

the factual underpinnings of every Sleekcraft factor point against plaintiff, as above. There was no confusion. Plaintiff conceded as much. Nor was confusion likely: The senior mark was weak. Plaintiff’s Composite was on the “conceptually weaker end” and a commercial waif: Plaintiff purchased no advertisements displaying it. Plaintiff promoted “Trademarkia” instead, while recognition of “Trademarkia” did not translate into recognition of “LegalForce.” There was no credible evidence that anyone not involved in this litigation could even recall Plaintiff’s Composite. The marks were not similar. Yes, Plaintiff’s Composite and Defendant’s Composite each arranged a squat parallelogram alongside a two-worded description related to law. But the arrangement was itself a functional commonplace, there were differences in the symbols (“LF” versus column, with a gradient of color versus one flat shade), there were differences in the words (bolding one versus two words, while describing one legal team versus a service reaching all law firms) — and the differences stood out. The marks have not appeared in the same specific marketing channels. No web search retrieved both. And, while plaintiff’s mark was on LinkedIn but not Instagram, defendant’s mark was on Instagram but not LinkedIn. There was no credible evidence that the senior and junior mark ever appeared head-to-head or serially in the same channel or likely would. The services were not related. Yes, both parties’ services relate to law, at the highest level of generality. But providing legal services as a law firm is not the same as selling leads to many law firms as a referral service — not in fact, nor as it appears to those using each. Plaintiff’s www.legalforce.com law firm mainly served individual businesspeople with trademark issues. Defendant’s www.lawfirms.com referral service mainly served individual people looking to find and compare lawyers to help with a personal need such as after an accident. Yes, there was some overlap. It was incidental, not targeted: Defendant collected a small number of leads for trademark lawyers during all periods plaintiff put at issue, and zero during the period using the accused mark. Nor will there be any expansion. Plaintiff has had years to expand. Its newfound plan to do so is a litigation gimmick. People seeking lawyers are not careless. Moreover, there was no intent to confuse. Defendant had no reason to do so. Plaintiff was not well known, the two did not overlap much in what they offered, and neither was likely to change much.

No matter how these factors are combined or weighed, they come out against plaintiff.

* * *

This case cries out for a trademark fee shift to the defense. That would be the appropriate consequence for forcing a 4-day trial and a 31 page opinion that repeatedly triggered the “what are we doing here?” meme. However, because the judge wasn’t pleased with the defense’s conduct either, the judge might decide to let each party marinate in the litigation choices they made.

UPDATE: LegalForce has filed a motion to “amend or make additional filings” contesting several of Judge Alsup’s statements discussed above. This is a time-sensitive filing given that Judge Alsup is scheduled to retire just days from now.

Case Citation: LegalForce RAPC Worldwide P.C. v. MH Sub I, LLC, 2025 WL 3675365 (N.D. Cal. Dec. 18, 2025)

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