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

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

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

The court continues:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As for the category #2 ads:

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

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

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

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

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

The court responds:

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

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

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

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

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

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

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

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

The court summarizes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Another Tough Ruling for People Search Databases–Camacho v. Control Group Media
• Three More Yearbook/People Database Cases Signal Trouble for Defendants
• Background Reports Protected by Section 230–Dennis v. MyLife
• Yearbook Defendants Lose Two More Section 230 Rulings
• Yearbook Database Cases Are Vexing the Courts–Sessa v. Ancestry
• Court Casts Doubt on the Legality of the Data Brokerage Industry–Brooks v. Thomson Reuters
• Section 230 Doesn’t Protect Yearbook Website’s Ads–Knapke v. Classmates
• Section 230 Covers Republication of Old Yearbooks–Callahan v. Ancestry
• Section 230 Doesn’t Protect Advertising “Background Reports” on People–Lukis v. Whitepages

The post Free-Trial Commercial Database Defeats Publicity Rights Claim–LaFleur v. Yardi appeared first on Technology & Marketing Law Blog.

* * *

This is one of an ever-growing number of cases alleging that a website purported to let users decline cookies but then disregarded those instructions and placed the cookies anyway.

Among other claims, the plaintiffs alleged that the unconsented cookie placements and resulting consumer tracking violated the common law invasion of privacy and intrusion upon seclusion doctrine. The court says that the CCPA’s statutory provisions bolster these common law claims:

The California Consumer Privacy Act (CCPA) further supports the conclusion that plaintiffs Shah and Wiley had a reasonable expectation of privacy in the information that was collected by cookies they had attempted to reject. As the California Attorney general’s website explains, the CCPA requires that companies give users the choice to opt out of any collection of personal information for “cross-context behavioral advertising, which is the targeting of advertising to a consumer based on the consumer’s personal information obtained from the consumer’s online activity across numerous websites.”

Two obvious points. First, CA AG’s website explanations aren’t binding interpretations of the CCPA. As the Dude might say, that’s just like, uh, their opinion, man. (Though this AG quote is just trying to summarize the overwhelmingly complex CPRA).

Second, the CPRA’s cross-context behavioral advertising restriction doesn’t implicate all cookie placements. In other words, there are many reasons why a website might place a cookie that have nothing to do with that awkward statutory construct. In this case, some of the defendants’ activity at issue would not be related to the AG’s guidance.

The court continues:

When evaluating Californians’ reasonable expectations of privacy, the CCPA’s provisions are highly relevant “customs, practices, and circumstances,” because they provide Californians with the reasonable expectation that they will have some control over their data and necessarily shape users’ expectations about their ability to opt out of websites’ collection of data for profit.

Say what? The CCPA expressly precludes private rights of action for violations of its privacy provisions (there’s an unrelated limited private right of action for some data breaches). However, if courts will treat the CCPA’s statutory text as norm-shaping in a way that strengthens common law privacy claims, the CCPA’s text nevertheless facilitates a private right of action workaround despite its clear and contrary statutory intent. Nice.

Some courts have already been mangling the CCPA’s data breach private right of action to apply to any data disclosures, not just those we’d consider to be a result of a “breach.” Now, if the CCPA further turbocharges common law-based private rights of action, plaintiffs are getting an expanding toolkit of options to bypass the CCPA’s clear, express, and very-much-intended prohibition on private rights of action.

To be fair, I don’t think the court needs the CCPA’s norm-setting to establish the problems with asking users for their cookie preferences and then (allegedly) disregarding those instructions. If the website says X and then does not-X, consumers have a pretty reasonable expectation of X–no need for any statutory backup to legitimize that expectation. At the same time, I think of cases, like the old In re JetBlue case, where there’s a “no harm/no foul” realpolitik outcome when a privacy violation is inconsequential. If the plaintiffs don’t like a website’s data collection, but suffer no adverse consequence from it, what are we even doing?

Case Citation: Shah v. MyFitnessPal, Inc., 2026 WL 216334 (N.D. Cal. Jan. 27, 2026)

Because this case involves both the CCPA and CPRA, I might as well include the CPRA meme too:

Prior CCPA/CPRA Posts

* My Comments to the CPPA Regarding its Initial CPRA Proposed Regulations
* Will California Eliminate Anonymous Web Browsing? (Comments on CA AB 2273, The Age-Appropriate Design Code Act)
* Can Facebook Stop Data Snarfers?–Meta v. BrandTotal
* Quick Links From the Past Year, Part 1 (CCPA and Privacy)
* Three More Yearbook/People Database Cases Signal Trouble for Defendants
* My Comments on the California Consumer Privacy Rights Act (CPRA) Rulemaking
* Court Casts Doubt on the Legality of the Data Brokerage Industry–Brooks v. Thomson Reuters
* New Primer on the California Privacy Rights Act (CPRA)
* CCPA Definitions Confuse the Judge in a Data Breach Case–In re Blackbaud
* A Roundup of CCPA Court Decisions (I Only Know of 7)
* CCPA Data Breach Lawsuit Against Walmart Fails–Gardiner v. Walmart
* The Anticipated Domino Effect: Virginia Passes Second State “Comprehensive” Privacy Law (Guest Blog Post)
* SF Chronicle Op-Ed: “Prop. 24 is the Wrong Policy Approach, at the Wrong Time, via the Wrong Process”
* Over 50 Privacy Professionals & Experts Oppose Prop. 24
* Californians: VOTE NO ON PROP. 24, The California Privacy Rights Act (CPRA)
* A Review of the “Final” CCPA Regulations from the CA Attorney General
* The CCPA Proposed Regs’ Data Valuation Calculation Provisions Provide Flexibility, But Raise Ambiguity & Transparency Concerns (guest blog post)
* My Third Set of Comments to the CA DOJ on the CCPA Regulations
* Comments on the DOJ’s Proposed Modifications to the CCPA Regulations
* Eric Goldman’s Comments to the California DOJ Draft Regulations for the Consumer Privacy Act (CCPA) (Part 3 of 3)
* Some Lessons Learned from the California Consumer Privacy Act (CCPA), 18 Months In (Part 2 of 3)
* Resetting the California Consumer Privacy Act (CCPA)…with 2 Weeks To Go! (Part 1 of 3)
* And At the End of the Day, the CCPA Remains Very Much the Same (Guest Blog Post)
* A Recap of the Senate Judiciary Committee Hearing on Amending the California Consumer Privacy Act (Guest Blog Post)
* Want Companies to Comply with the CCPA? Delay Its Effective Date (Guest Blog Post)
* Recap of the California Assembly Hearing on the California Consumer Privacy Act
* A Status Report on the California Consumer Privacy Act
* 41 California Privacy Experts Urge Major Changes to the California Consumer Privacy Act
* California Amends the Consumer Privacy Act (CCPA); Fixes About 0.01% of its Problems
* Recent Developments Regarding the California Consumer Privacy Act
* The California Consumer Privacy Act Should Be Condemned, Not Celebrated
* A First (But Very Incomplete) Crack at Inventorying the California Consumer Privacy Act’s Problems
* Ten Reasons Why California’s New Data Protection Law is Unworkable, Burdensome, and Possibly Unconstitutional (Guest Blog Post)
* A Privacy Bomb Is About to Be Dropped on the California Economy and the Global Internet
* An Introduction to the California Consumer Privacy Act (CCPA)

The post California’s Consumer Privacy Act (CCPA) Assists a Private Right of Action–Shah v. MyFitnessPal appeared first on Technology & Marketing Law Blog.

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.”

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)

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.

The post A Massive Roundup of Section 230 Decisions appeared first on Technology & Marketing Law Blog.

An advertiser, Oasis Energy, modified the meme to promote its offerings in two social media posts:

FJerry owns both the copyright to the meme and Phillips’ publicity rights.

Copyright 

Oasis tried some weak arguments to dismiss the copyright claim:

Oasis modified the image. The court responds:

The modifications are not so vastly different that the allegedly infringing images bear no passing resemblance to the original. The individual in the allegedly infringing photos is the same as the one in the copyrighted photo. Further, the “format” of the allegedly infringing photos — of Phillips holding a sign bearing some text — is the same. The main differences are the specific words written on the allegedly infringing photos and the process through which the words were written, i.e., through an image-editing software, rather than handwritten on cardboard. But that distinction alone does not mean that no reasonable jury could conclude that Oasis infringed upon FJerry’s copyright.

Oasis made a de minimis use. This is an odd argument, and the court recharacterizes it as a fair use defense, and “Courts generally cannot consider fair use when resolving a motion to dismiss.” To be clear, Liebowitz produced a string of defense fair use wins on motions to dismiss when he brought terrible lawsuits–but I don’t think the fair use argument is as obvious here.

Also, the court rejects the idea that “the use was “fleeting” simply because the defendant removed the post upon notice,” especially when the ad was online for a month.

Oasis claimed “no monetary or commercial value was gained from use of the allegedly infringing work.” I’m not sure what this means, but this seems dubious. If the advertiser makes two social media advertising posts and make no sales from the ads, then they have major problems with their business. Plus, the plaintiff is unhappy about any lost licensing revenues.

Meme usage is protected by the First Amendment. Citing Rogers v. Grimaldi,

Oasis contends that the images here are referential and expressive because they were a visual allusion to a widely known meme. Oasis further presses that the meme has become shorthand for “ironic or humorous observations,” its use by Oasis was consistent with that purpose, and there was no false claim of sponsorship, no deceptive message, and no attempt to exploit the identity or goodwill of the individual in the meme for commercial gain.

The cite to Rogers v. Grimaldi confuses the court (and me), because that case only applies to trademarks, not copyrights. Plus, the content items at issue are ads, not the kind of expressive content at issue in the Rogers case.

Publicity Rights

the Complaint pleads the proper elements of a claim for right of publicity. Oasis contends that the Complaint fails to allege that Oasis used Phillips’ likeness for commercial or nonfleeting purposes, necessary elements of a right of publicity claim. But that is plainly incorrect.

Your evergreen reminder that even if you’ve secured all of the requisite copyright licenses for your ads, you still need the publicity rights consent. Meme status doesn’t change this at all. I flagged the same issue in connection with the Griner v. King meme copyright decision.

One obvious countermove: Oasis could have pretty recreated an inspired-by photo using models who signed proper publicity rights consents. Instead, it chose the incredibly lazy and legally unwise path.

False Endorsement

I’m not sure what trademark protection applies to the meme, but Oasis instead focused on the consumer confusion prong for the motion to dismiss. The court is unpersuaded:

Though the advertisements did not include Mr. Phillips’ name, a consumer could still be confused about Mr. Phillips’ relationship to Oasis’s product, given that Mr. Phillips’ image and likeness is in the allegedly infringing photos, in his “classic” pose — holding up a sign with text on it.

The photo’s meme status doesn’t change the analysis (at least, not yet):

Though Oasis maintains that the ManWithSign format functions as a visual shorthand for social commentary, rather than endorsement, that inquiry is inappropriate at this stage in the proceedings. Deciding whether the meme has become a “widely used satirical device,” rather than a vehicle for endorsements, would take the Court down a highly fact-dependent inquiry that would be best resolved at a later stage of litigation.

The Rogers v. Grimaldi invocation is more logical here than in the copyright discussion, but the court quickly rejects it because the items in questions are ads, not expressive works.

In a last-ditch effort, Oasis tries to throw the meme generator under the bus, to no avail:

Oasis also presses that the existence of an online meme generator, ImgFlip, that permits users to create memes using the ManWithSign format defeats FJerry’s claims. Not so. ImgFlip has an extensive list of terms of service on their website that limit how users may use content from the website. Among other things, those terms indicate that users “may not use content from our Services unless you obtain permission from its owners,” that ImgFlip does not give users “ownership of any intellectual property rights in our Services or the content you access,” and that users agree to “indemnify and hold ImgFlip harmless from and against any and all claims . . . that arises out of or relates to your infringement of any third party’s rights.” Further, the fact that ImgFlip allows users to edit copyrighted images on their website means only that a copyright holder could bring suit against both ImgFlip and the user. ImgFlip’s services, in other words, do not bear upon this action.

I imagine ImgFlip is muttering “thanks for nothing” to Oasis for sideswiping them. I’ve lost track of the times I’ve tested on the legal liability of meme generators; my 2007 Internet Law exam (1, 2) is the first that came to mind.

Case Citation: FJerry LLC v. Oasis Energy Drink LLC, 1:25-cv-06088-JSR (S.D.N.Y. Oct. 30, 2025)

The post Using a Meme in Your Advertising? Clear the Publicity Rights–FJerry v. Oasis Energy appeared first on Technology & Marketing Law Blog.

Is the Trump Tapes suit truly over? It’s been dismissed, but not without leave to move to amend for a third time. Would another amended complaint stand a chance? This question is why I’ve accepted Eric’s gracious invitation to chime in on a case that Tyler Ochoa has already expertly covered twice on this blog (here and here).

So as not to bury the lede, here’s how I think the case could perhaps be revived: by including a count specifically claiming state-law copyright infringement. I think the court opened the door to such a claim by deciding that Trump did not (and perhaps cannot) plausibly allege that his part in the interviews was “fixed” under federal copyright law.

The U.S. Copyright Act only applies to “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. Such fixation only can occur “by or under the authority of the author.” 17 U.S.C. § 101. For any work that is not so fixed, the Act specifies that “[n]othing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to . . . subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression.” 17 U.S.C. § 301.

As it stands, in the court’s eyes Trump “played no role in ‘fixing’ either Woodward’s questions or his answers to Woodward’s questions,” and his consent to Woodward’s recording of the interviews did “not mean that fixation occurred” under Trump’s authority.  I’m skeptical of the court’s reasoning here—that Trump’s disagreement with a later use of the recordings means that he did not authorize their initial creation—for reasons that Tyler explains well in his commentary. But taking it as the law of the case, as it is for now, I think it may bring everything outside the ambit of federal law.

In other words, given (a) that Trump is claiming he’s the author of his words (as a literary work) as well as of his vocalization of them (as a sound recording), and (b) that the court has apparently decided he cannot plausibly allege that either his words or vocalization was fixed under federal copyright law, I think the gravamen of the suit may shift to state-law copyright.

I’ve written fairly extensively about the possibility of state-law copyright in unfixed expression, e.g., this Journal of the Copyright Society piece, and I have a new article forthcoming in the Texas A&M Law Review on the potential for state-law copyright in AI-generated expression (draft soon to be posted on SSRN). The Copyright Society piece revolves around whether a formerly enslaved person named Mary Ann Cord had a New York copyright in an autobiographical story she told to Mark Twain, which he later wrote down and published, initially in the Atlantic, with credit and compensation to him alone.

My answer to that question was yes, Cord likely did have a copyright, particularly given Twain’s own recognition that her story “was a curiously strong piece of literary work,” so teeing up (as further detailed in this Wisconsin Law Review piece) a plausible claim for state-law copyright infringement against Twain, as well as against the Atlantic, which features the story on its website to this day.

Coincidentally, the court here has indicated that any state claim would, like Cord’s, be governed by New York law. So far, though, the court has held that Trump’s (non-copyright-based) state-law claims are preempted by the U.S. Copyright Act. But state-law copyright claims in unfixed works of authorship are, as noted above, expressly not preempted under that Act. 17 U.S.C. § 301.

The key going forward, then, is whether Trump can articulate how one or more of his answers, either in their substance or in his vocalization of them, constitute a work of authorship that the common law of New York should recognize and protect, at least in part, against the unauthorized (by Trump) publication of The Trump Tapes. (It would be under the common law because there is, to my knowledge, no New York statute on point. And the “at least in part” caveat is because any answers already included in Woodward’s book Rage were presumably published with Trump’s authorization, such that it’s likely only in Trump’s vocalization that a state-law copyright could still persist in them.)

I’ve not parsed all of Trump’s answers to form my own definitive view, though the court has already expressed its skepticism, at least as to their substance:

Indeed, if Plaintiff’s answers in The Trump Tapes are considered separate and apart from Woodward’s questions, the result is often unintelligible gibberish. To illustrate this point, the Court includes in the attached Appendix numerous examples of Plaintiffs’ responses, first separately and then together with Woodward’s questions. This exercise reveals that it is Woodward’s questions that make Plaintiff’s answers intelligible. Because an interviewer’s questions are of little to no value absent the interviewee’s answers, and because an interviewee’s answers are frequently unintelligible absent the interviewer’s questions, providing for the separate copyrightability of questions and answers in an interview setting is not rational, does not advance the purposes of copyright law, and ignores the reality that an interview must be considered as a unified whole.

But note the hedging: “often unintelligible gibberish” and “an interviewee’s answers are frequently unintelligible absent the interviewer’s questions.” I agree with “often” and “frequently,” though I think they make the conclusion at the end (“the separate copyrightability of questions and answers in an interview setting is not rational”) necessarily less than categorical.

Sometimes the substance of an answer, whether “in an interview setting” or otherwise, might separately constitute a “work of authorship.” Consider the question, “Tell me about that time in your life,” being answered with a long and vivid description, one which has all the hallmarks of autobiographical expression. And outside the realm of the hypothetical, consider how Cord told Twain her story of enslavement and emancipation in response to him simply asking her, “[H]ow is it that you’ve lived sixty years and never had any trouble?”

Beyond overbroad categorization, the problem with the court’s analysis of Trump’s answers is that it’s founded in “the animating principles of the Copyright Act.” But as explained above, if his answers were not fixed as defined in that Act, then it seems it’s the principles of New York common law that must be looked to in deciding if his answers are separately copyrightable.

Now, I’m not arguing that this situation is, on balance, desirable. Federal copyright is challenging enough to administer without bringing state law into the mix. But the dichotomy is how copyright seems to function in the United States, stemming from Congress’s apparent determination in 1976 that its power to “promote the progress of science . . . by securing for limited times to authors . . . the exclusive right to their . . .  writings,” U.S. Const. art. 1, § 8, cl. 8 (emphasis added), is generally limited to works fixed by or under the authority of an author. My own hedging here (“seems to function,” “apparent determination”) is because claims in unfixed works have rarely been brought, much less decided. That such cases have been so rare is likely because it’s typically been presumed that “under the authority of the author” is synonymous with consenting to someone else pressing the “record” button.

My guess here is that if Trump were to include a state-law copyright claim in a third amended complaint, the court would reconsider its fixation analysis. That seems the easiest way to avoid the challenging additional issues that would come into the case, including the specter of the Dormant Commerce Clause, on top of the numerous issues already at play as detailed in Tyler’s posts. (Though a state-law copyright route would presumably avoid one of those issues—the prohibition on federal copyright in works prepared by officers of the U.S. government as part of their official duties, per 17 U.S.C. §§ 105 and 101—the policy implications of that avoidance are troubling.) So the court could plausibly revise its take on fixation, finding instead that Trump’s answers were all fixed under federal law because he permitted Woodward to press “record” and because, unlike in Garcia v. Google, there were no blatantly false pretenses involved in why Woodward was recording Trump. And even if, as Eric had suggested in Tyler’s first post, the “authority” to fix a work of authorship under the Copyright Act means something more than mere permission to fix (such as an intent at the time of fixation to claim federal copyright), the allegations seem to point to Trump having had that intent.

From there, for reasons well described in Tyler’s second post, the court’s decision that Trump’s answers are not separately copyrightable seems solid enough under federal law, particularly given the concern that journalism, and thus the “progress” purpose of federal copyright, would otherwise be hindered. But of course it’s not certain that this is how the court, or a court on appeal, would handle a state-law copyright claim.

In sum, then, I think there may be at least one way to revive the case—a claim of state-law copyright infringement—and it’ll be very interesting (at least to me) to see what happens if it’s included in a proposed third amended complaint.

The post Trump Lost the Trump Tapes Ruling, But Could He Still Prevail? (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

[UPDATE: for bonus coverage, see Prof. McFarlin’s supplement to this post.]

Last week, a federal judge in New York dismissed a lawsuit filed two-and-a-half years ago by then-former President Donald Trump against journalist Bob Woodward and his publisher, Simon & Schuster, over publication of The Trump Tapes: Bob Woodward’s Twenty Interviews with President Donald Trump.  Trump v. Simon & Schuster, Inc., Case No. 1:23-cv-06883, 2025 WL 2017888 (S.D.N.Y. July 18, 2025).

The lawsuit involves sound recordings of 19 interviews that President Trump voluntarily gave to Woodward between December 2019 and August 2020, plus one interview from 2016 (when Trump was still a candidate). More than eight hours of excerpts from those recorded interviews were published by Simon & Schuster in October 2022 as an audiobook, and transcripts were published in paperback and ebook formats. The Second Amended Complaint sought a declaratory judgment that Trump was a joint author and copyright owner of the recordings, or in the alternative, that he was the sole author and copyright owner in his interview responses; plus compensatory and punitive damages and disgorgement of profits, which the lawsuit (absurdly) valued at almost $50 million. It also pleaded state-law claims for an accounting of profits, unjust enrichment, and breach of contract.

I previously blogged my “preliminary analysis” of the case  when the original complaint was first filed. On revisiting that blog post more than two years later, I am pleased how much of my original analysis still holds up, despite some substantive disagreements with the ruling. I will recap some relevant portions of that blog post as needed; but for a full analysis of all of the issues, please see the original post.

How We Got Here

The lawsuit was first filed in the Southern District of Florida on January 30, 2023.  The original motion to dismiss was rendered moot by the First Amended Complaint, filed on April 24, 2023.  On May 18, 2023, discovery was stayed pending the outcome of the second motion to dismiss, which was filed the next day.  On August 4, 2023, the court granted the defendants’ motion to transfer venue to the Southern District of New York. Trump v. Simon & Schuster, 2023 WL 5000572 (N.D. Fla. Aug. 4, 2023). The Second Amended Complaint was filed on November 13, 2023; and the parties refiled their papers, including the motion to dismiss, opposition, and reply, in the first week of December 2023. (The briefs are available here.)

And then, the parties waited. And waited. On December 17, 2024, over one year later, Trump’s attorney sent a letter to the court, asking it to expedite the case.  The court denied the motion the same day, saying “The Court is at work on the outstanding motion,” and refusing to lift the stay of discovery.  Four months later, on April 25, 2025, Trump’s counsel sent another letter, requesting a decision within 30 days.  The court did not respond.  Two months later, on June 26, 2025, Trump’s counsel sent yet another letter, complaining “we remain in limbo, unable to proceed with discovery or obtain a resolution on the merits,” and implicitly threatening to file a petition for a writ of mandamus in the Second Circuit.  Finally, the court issued its ruling on July 18, 2025, two-and-a-half years after the case was filed, and more than 19 months after the motion to dismiss was fully briefed.

The Issues

In my previous blog post, on February 13, 2023, I identified “six major issues raised by the case” that Trump would have to overcome:

First, were the recorded interviews a copyright-eligible “work of authorship”?  Second, if so, who is the initial owner of the copyright(s)?  Third, is Trump’s claim of ownership barred by 17 U.S.C. §105, as a “work of the United States Government”?  Fourth, if not, can Trump circumvent the registration requirement by seeking a declaratory judgment, or will he have to comply with the registration requirement?  Fifth, assuming Trump owns a valid copyright, did he grant an implied license to Woodward to publish transcripts of the interviews and/or the record­ings themselves?  Sixth, assuming Woodward published copyrighted material without Trump’s authorization, was he permitted to do so, either as a fair use, or by the First Amendment?

Two weeks later, on February 28, 2023, Trump’s counsel filed an application to register a copyright in the The Trump Tapes (as published) as a work of sole authorship, with himself as the author.  (I have no idea whether my blog post informed Trump’s counsel of the registration requirement.) The Copyright Office issued the registration (Registration #SR0000975712) on October 13, 2023, but as work of joint authorship. Under 17 U.S.C. § 410(d), “[t]he effective date of a registration is the day on which an application, deposit, and fee, which are later determined … to be acceptable for registration, have all been received in the Copyright Office,” so the effective date was backdated to February 28, 2023.  By filing a Second Amended Complaint that included the registration, Trump’s counsel took the fourth issue that I identified off the table.

The court’s decision involved only the first two issues outlined above. Because it found the case barred by the second issue, the court did not address the remaining issues.

The Merits: Joint Authorship

On the first issue, as I wrote in my initial blog post:

“Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.”  [Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991)]  The words spoken, and the manner in which they were spoken, were original to Woodward and Trump, and there is no doubt that they are minimally creative.  The inescapable conclusion is that the recorded interviews are copyrightable works of authorship, both as sound recordings and as literary works.

Although it did not expressly say so, the court implicitly accepted the premise that The Trump Tapes was an original work of authorship. “Although the Copyright Act does not explicitly address interviews, courts have afforded them protection as “literary works,” “sound recordings,” or “compilation[s].” [Slip op. at 16.]  Instead, the court focused on the second issue: who is the legal author of The Trump Tapes?

As I wrote in my original blog post:

A “joint work” is defined as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” [§101] … Questions and answers are normally interdependent; often the answers only make sense in the context of the questions.  If the parties wanted to claim authorship of an interviews as a joint work, they may do so.

Case law, however, has imposed two additional requirements.  [See Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991) …]  First, each author’s contribution must be independently copyrightable; that is, it must consist of original expression (as opposed to ideas or research).  [945 F.2d at 507-09 … ] … Second, the parties must have intended to be joint authors.  [945 F.2d at 506-07 … ]  Here, it seems quite clear that neither Woodward nor Trump intended to be joint authors with each other….

Thus, under existing case law, the answer is quite clear: the interviews are not joint works.

The district court agreed. It quoted Childress and two other Second Circuit cases on the elements of joint authorship [Slip op. at 17-19]; and it marshalled all of the allegations in the Second Amendment Complaint indicating that neither party intended to be joint authors [Slip op. at 19-20]. The court also relied on the fact that both the initial Complaint and the First Amended Complaint sought sole authorship and alleged that “President Trump never sought to make a work of joint authorship.” [Slip op. at 20 n.10] “Litigation is not a game, and where — as here — a complaint’s allegations directly contradict allegations made in earlier pleadings, courts may disregard the contradictory allegations in resolving a motion to dismss.” [Id.]

The court also pointed to “objective factual indicia” indicating a lack of intention to be co-authors: the interview tapes were compiled, edited, and published by Woodward and Simon & Schuster, without Trump’s involvement [Slip op. at 21-22]; and although Trump is credited as a joint reader on the audiobook (“Read by Donald J. Trump and Bob Woodward”), all published versions credit Bob Woodward as the sole author (“By Bob Woodward”). [Slip op. at 22-23]  (The court dismissed an online Barnes & Noble advertisement that credited both as authors, on the ground that the views of third parties were legally irrelevant; only the intentions of the purported joint authors were material. [Slip op. at 23 n.11])

Trump argued that his certificate of registration created a rebuttable presumption of joint authorship that was sufficient to defeat a motion to dismiss. [17 U.S.C. § 410(c)] The court rejected this argument. “The presumption of ownership accompanying a copyright registration may be rebutted by … evidence that the registrant is not an author of the work.” [Slip op. at 25]  “Moreover, … where parties submit conflicting adverse copyright registration applications, the Copyright Office does not sit as a tribunal resolving those competing claims…. When conflicting claims are received, the Office may put both claims on the record if each is acceptable on its own merits.” [Slip op. at 26]  (Note that although we speak of registering a copyright, the statute consistently says that what is registered is a copyright “claim.” [17 U.S.C. § 408(a); 17 U.S.C. § 410(a); 17 U.S.C. § 411(a)]) “Where … a court is faced with conflicting or adverse registrations, it must make an independent determination as to ownership, and [it] may concluded that no competing registration has prima facie validity.” [Slip op. at 26]  Because there were conflicting registrations, and Trump’s registration was contradicted by his allegations, the court concluded that the Second Amended Complaint “does not plausibly allege joint authorship.” [Slip op. at 28]

Commentary: This portion of the judge’s decision is quite correct under current case law. As I wrote in my previous blog post:

Second Circuit case law is clear: there cannot be inadvertent joint authorship.  In 16 Casa Duse, LLC v. Merkin, 791 F.3d 247 (2d Cir. 2015), … both parties sued, each claiming exclusive ownership of the movie footage.  The court held that because each of them was seeking a declaration of sole ownership, the parties could not be joint authors.  Because their contributions were inseparable, the court therefore had to determine which one of them was the “dominant” author …

I also wrote that “[i]n my opinion, this decision was incorrect; there should be limited situations where the parties have created a joint work through collaboration in fact, even if they subjectively did not intend for the work to be a joint work.” I adhere to that opinion.  The Second Circuit’s position makes sense in the context of relatively unequal contributions, where there is a “dominant” author and someone else makes helpful suggestions which the dominant author is free to accept or reject. It does not make sense where the contributions of the parties are relatively equal. The Second Circuit’s holding in 16 Casa Duse gave the producer the equivalent of work-made-for-hire ownership without satisfying the statutory requirements of that doctrine.

Nonetheless, I cannot fault the district judge for following binding Second Circuit precedent. And the Second Circuit is notorious for almost never taking cases en banc, so it is almost certain that if there is an appeal, this part of the ruling will be affirmed. Since there is no circuit split (the Ninth Circuit and the Seventh Circuit agree with the Second Circuit on this issue), it is also highly unlikely that the U.S. Supreme Court would agree to take the case.

The Merits: Divided Authorship

So if The Trump Tapes are not a work of joint authorship, who owns the copyright? As I wrote in the earlier blog post, the practice of the Copyright Office is clear:

“The U.S. Copyright Office will assume that the interviewer and the interviewee own the copyright in their respective questions and responses unless (i) the work is claimed as a joint work, (ii) the applicant provides a transfer statement indicating that the interviewer or the interviewee transferred his or her rights to the copyright claimant, or (iii) the applicant indicates that the interview was created or commissioned as a work made for hire.”  [Compendium of Copyright Office Practices (3d ed. 2021) (Compendium III), §719]

The interviews cannot meet the statutory definition of a work made for hire: Trump was not an employee of either Woodward or Simon & Schuster, and a “specially ordered or commissioned” work cannot be a work made for hire unless it falls within one of nine specified categories … and there is a signed written agreement specifying that the work is made for hire. [17 U.S.C. §101]  A transfer of copyright ownership also requires a signed writing.  [17 U.S.C. §204(a)]  Thus, in the absence of a signed writing, [under the Compendium] Woodward and Simon & Schuster cannot claim a copyright in Trump’s responses to the interviews [or vice versa] unless the work was a “joint work.”

(This explains why the Copyright Office issued the registration to Trump as a “joint work” rather than as a work of sole authorship)

The district court, however, rejected the Copyright Office’s position. The Compendium was not the product of notice-and-comment rulemaking, so it would not have been entitled to Chevron deference even before Chevron was overturned by Loper Bright. Instead, “the Compendium is a non-binding administrative manual that at most merits deference under Skidmore…. That means we must follow it only to the extent it has the ‘power to persuade.’” [Slip op. at 44, quoting Georgia v. Public.Resource.org, Inc., 590 U.S. 255, 271, 140 S.Ct. 1498, 1510 (2020), quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)]  For that reason, the Compendium states that “[t]he policies and practices set forth in the Compendium do not in themselves have the force of law and are not binding …” [Compendium III, at 2]  The district court cited six cases in which courts had rejected a position of the Copyright Office as set forth in the Compendium. [Slip op. at 45-46]

Instead, the court held that question-and-answer interviews are a single unitary work for purposes of copyright law, for several reasons. First, “Plaintiff’s responses and Woodward’s questions have ‘little or no independent meaning standing alone,’ and thus the interviews reflecting their exchanges must be treated as what they are: a unified, integrated work.” [Slip op. at 43]  The court illustrated this point with a 22-page Appendix of excerpts comparing the question-and-answer transcripts with Trump’s responses alone; without the questions, “the result is often unintelligible gibberish.” [Slip op. at 43 n.16]  Second, case law almost uniformly rejects the idea that an interviewee has a copyright interest in the interview. Two courts rejected such an argument on the theory that the interview responses are “ideas” rather than “expression,” but the court was not persuaded by that rationale, saying one court improperly made a “value judgment” and the other improperly required “careful thought and preparation” to claim a copyright. [Slip op. at 31 n.12 and 32 n.13]  The court was more persuaded by the rationale that “an interviewee is not an “author” who “fixe[s]” a work “in a tangible medium of expression.” [Slip op. at 29]  “As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” Community v. Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1990). [Slip op. at 29, 30, 33]  “Here, Woodward recorded the interviews at issue, … and thereby fixed the interviews in a ‘tangible medium of expression.’” [Slip op. at 33]

“Fixation can, of course, occur ‘under the authority of the author,’ 17 U.S.C. § 101, even where the author does not personally perform the act of fixation.” [Slip op. at 35, collecting cases]  “Here, the SAC pleads that Plaintiff consented to Woodward’s recording of the interviews, whereby the interviews were ‘fixed in a tangible medium of expression” for purposes of the Copyright Act.” [Slip op. at 36]  “Such consent does not mean that fixation occurred ‘under the authority of [Plaintiff],’ however.” [Id.]  The court cited Garcia v. Google, 786 F.3d 733, 744 (9th Cir. 2015) (en banc) for the proposition that “where the fixation of a work is ‘in derogation of [a party’s] permission,’ the fixation is not done ‘under the authority’ of that party.”  Here, although the fixation was not in derogation of Trump’s permission (he gave his consent to be interviewed and for Woodward to record the interviews), the subsequent use of the recordings allegedly was in derogation of Trump’s permission.

The court also cited Del Rio v. Virgin America, Inc., 2018 WL 5099720 (C.D. Cal. June 28, 2018), in which a voice-over actress went to a studio and was asked to record the FAA regulations for airline safety. As she was doing so, “[s]omeone in the room pitched the idea for a rap sung by a young child,” and she spent the next three hours improvising a sound recording of the flight-safety regulations as a rap song performed in a child-like voice. The recording subsequently “went viral” and was used in Virgin Airlines’ on-board air-safety video. Plaintiff alleged she had never signed a contract or release with Defendants or any other party. The defendants made the same argument as in this case: she was not an “author” of the recording because she was not the one who had fixed it in a tangible medium of expression. The court acknowledged Garcia v. Google as precedent, but it actually held to the contrary:

Taking the allegations in the light most favorable to Plaintiff, the Complaint sufficiently alleges that Plaintiff fixed her performance by or under her authority. Though discovery might reveal facts counter to the allegations in the Complaint, Plaintiff alleges that she “alone created the voice, melody, and rhythm for the rap heard in the Virgin Safety Video.” … Though Defendants might have had a role in creating the rap that could bear on the question of joint authorship, … [t]his situation is not sufficiently similar to Garcia, where “[h]owever one might characterize Garcia’s performance, she played no role in the fixation.”

2018 WL 5099720, at *6.

More persuasive to me was the court’s public policy reason for not granting an interviewee a separate copyright in his or her interview responses:

By splitting the copyright interest in an interview into two parts, neither of which alone is commercially valuable as a stand-alone work, the interviewer’s work is essentially stripped of value, forcing potentially costly negotiations with the interviewee in order for the journalist to utilize the interview, which cuts against the central goal of copyright law.

Slip op. at 40, quoting Mary Catherine Amerine, Wrestling Over Republication Rights: Who Owns the Copyright of Interviews?, 21 Marquette Intell. Prop. L. Rev. 159, 173 (2017).

Ultimately, the court concluded that “the work resulting from an interview is an inseparable unitary whole,” and that Trump “does not have a copyright interest in his stand-alone interview responses.”  [Slip op. at 46]

Because Trump lacked a copyright interest, the court did not address the remaining issues: whether Trump’s claim was barred by 17 U.S.C. §105, because his interview responses were a “work of the United States Government”; and whether the use was a fair use.  The court did note, however, that both of those were “fact-intensive” defenses that generally are not amenable to resolution on a motion to dismiss. [Slip op. at 47 n.17]

Commentary

Having decided that each interview was a unitary work, the court was faced with competing copyright registrations, one from Simon & Schuster and one from Trump, and it ruled out both of Trump’s legal theories: that The Trump Tapes were a work of joint authorship, or that they were a work of divided authorship. Although the court did not directly answer the question of who owns the copyright in The Trump Tapes, the implications of its decision are clear: the sound recordings were authored by Woodward, the interviewer who “recorded the interviews at issue, … and thereby fixed the interviews in a ‘tangible medium of expression,’” [Slip op. at 33] and the copyright(s) in those sound recordings was (were) assigned to Simon & Schuster.  (Thus, somewhat more precisely, each interview was a unitary work, and The Trump Tapes is a compilation or collective work comprising twenty such unitary works.)

As a purely statutory matter, I am not entirely persuaded by the court’s conclusion that Trump cannot be one of the authors of those interviews, just because he was not the one who “fixed” the interviews by pressing the record button. As the Copyright Office pointed out, the only choices are sole authorship, joint authorship, or work-for-hire status (unless one of those default choices is altered by a signed, written agreement). Because the Second Circuit’s case law ruled out joint authorship status, and the work clearly was not a work-made-for-hire, the only choice left to the court was sole authorship. But the cases that persuaded the court all involved audiovisual works, which can be distinguished on the ground that the camera work contributes at least as much copyrightable expression as the interview itself. Moreover, both Garcia v. Google and 16 Casa Duse v. Merkin involved scripted audiovisual works where the actors spoke lines authored by others, using sets, costumes, lighting, and camera work created by others.  Audiovisual works present a much stronger case for not disaggregating the work and therefore for finding one party to be the “dominant” author (and copyright owner) and other party to be subsidiary. But unlike an audiovisual work, or even a studio recording with sound engineers, in my opinion there is no “authorship” involved in just pushing a “record” button. The only authorship in formal interviews are the questions and the answers, which are a collaborative enterprise in which copyrightable expression is produced by two authors, not just one.

Thus, in my opinion, it is inconsistent to conclude that Trump contributed approximately half of the original expression to a copyrightable work, but to also conclude that Trump cannot be an author because he himself did not “fix” the copyrighted work.  In my previous blog post, Eric and I disagreed on this point.  I expressed the opinion that Trump was an “author” and that his consent to be recorded was sufficient for the work (or his portion of the work) to be “fixed … by or under the authority of the author.” Eric expressed the opinion that Trump could not be an author, because for Eric, “the statutory requirement of ‘authority’ connotes something more than mere ‘consent to record.’” The district court came down squarely on Eric’s side of the debate. To me, that is too similar to the outdated “instance and expense” test for work-made-for-hire under the 1909 Copyright Act: because the interviews were initiated and recorded by Woodward, they were made at his “instance and expense,” so (the work is a work made for hire and) Woodward is the sole owner of the copyright. The court’s decision gives Woodward the same outcome as a work made for hire without having to satisfy the more demanding statutory requirements of the 1976 Act’s work-for-hire definition.

At the same time, I am also persuaded by the judge’s holding that an interview is a single unitary work; and his demonstration of that (comparing the responses alone to the full question-and-answer transcript) is quite persuasive. It makes sense not to “make Swiss cheese of copyrights” by dissecting them into their component parts (which was Eric’s primary objection in our fixation debate). To the extent my earlier blog post relied on the Copyright Office’s opinion that interview questions and answers should be disaggregated, I have changed my mind on reconsideration. But that brings me back to a point on which I have not changed my mind: in my opinion, both parties were “authors” of original expression, so the work should be considered a work of joint authorship, notwithstanding their subjective intention not to be joint authors. That is especially true of the sound recordings, in which Trump’s “performance” is at least as important an expressive contribution as his actual answers.

The result of joint authorship would be that Woodward and Simon & Schuster can each publish The Trump Tapes without further permission, but they would have to share the profits from that publication with the other joint author, unless the action was barred by one of the other defenses (“work of the U.S. government,” implied license, fair use, or the First Amendment).  I think that is the correct result under the statute, purely as a doctrinal matter; and in many contexts (such as a celebrity profile), I would be fine with that result. But where the interview subjects are public officials and political candidates, I admit that I find the result to be distasteful, especially where (as here) there is clearly an adversarial relationship between the subject and the journalist, notwithstanding Trump’s consent to be interviewed.

Furthermore, I am also persuaded by the public policy reasons identified in Amerine’s article. Journalists have an ethical obligation to obtain consent for an interview to be “on the record,” but they should not have to negotiate further to be able to publish such an interview without compensating the subject. “Checkbook journalism” is also an ethical violation in the journalism profession. For reasons of public policy, it makes a lot of sense to conclude that the copyright in an interview lies solely with the journalist as a default matter; and that the interview subject should have to negotiate a written agreement if they want to share the profits. Narrowly construing the requirement that a work be fixed “by or under the authority of the author” serves as a convenient doctrinal hook for reaching that result. It also avoids the need to resort to the First Amendment as a Constitutional check on the Copyright Act (which so far the Supreme Court has been unwilling to do). And it was the only way for the court to decide the case on a motion to dismiss, as the other defenses depended on factual issues that would have had to wait for a motion for summary judgment.

Bottom line: While as a doctrinal matter I would have preferred that the court decide the case on one of the other grounds outlined in my blog post, as a matter of public policy the court reached the correct result. I can live with a little doctrinal discomfort when the result protects both journalists and the public interest in holding public officials and public figures to account.

Preemption

Trump also brought state-law claims for an accounting of profits, unjust enrichment, and breach of contract. (He abandoned his claim for breach of the implied covenant of good faith and fair dealing. [Slip op. at 48 n.20]) The court dismissed all of the claims on the ground they were preempted by Section 301 of the Copyright Act.

Section 301 preempts state-law causes of action if two conditions are met: first, the plaintiff must be claiming rights “in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright.” Second, the state-law right must be “equivalent to any of the exclusive rights within the general scope of copyright.” [17 U.S.C. § 301(a)]  Importantly, “[t]he scope of copyright for preemption purposes … extends beyond the scope of available copyright protection.” [Slip op. at 48-49 n.21, quoting Forest Park Pictures v. Universal TV Network, Inc., 683 F.3d 424, 429-30 (2d Cir. 2012)]  Thus, “Plaintiff’s state-law claims may be preempted even where he does not possess a valid copyright interest.” [Slip op. at 49 n.21]

On the first prong, “[t]here is no dispute here that The Trump Tapes come within the subject matter of copyright.” [Slip op. at 51 (cleaned up)]  “The paperback and audiobook versions of The Trump Tapes … are, respectively, a ‘literary work’ and a ‘sound recording’ …” [Id.]

Under the second prong, state-law rights are “equivalent” when they “may be abridged by an act which, in and of itself, would infringe one of the exclusive rights.” [In re Jackson, 972 F.3d 25, 43 (2d Cir. 2020)]  The unjust enrichment claim simply pleads that defendant was enriched at plaintiff’s expense and that equity requires restitution. Citing Second Circuit precedent, the court ruled (without further explanation) that “Plaintiff’s unjust enrichment claims are not qualitatively different from a copyright infringement claim.” [Slip op. at 53, citing Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296, 306 (2d Cir. 2004)]  This makes sense, because any enrichment could not be at Trump’s expense if he did not have a property interest in the copied material.

Breach of contract claims usually are not preempted, because the existence of a contract (offer, acceptance, mutual consideration) usually is an “extra element” that goes beyond the exclusive rights protected by copyright law. But this is not categorical: where the contractual promise sought to be enforced is simply to refrain from exercising one of the exclusive rights, the claim is preempted. Here, “[t]he gravamen of the [breach of contract] claim is that Woodward ‘distributed’ the alleged protected work (Trump’s responses to Woodward’s interview questions) in violation of their [alleged] agreement.” [Slip op. at 55]  The court cited Second Circuit precedent “reject[ing] the argument that exceeding the scope of a license entails an ‘extra element’ that saves a breach of contract claim from preemption.” [Slip op. at 55, citing Universal Instruments Corp. v. Micro Sys. Eng’g, Inc., 924 F.3d 32, 49 (2d Cir. 2019)]  Otherwise, any use exceeding the scope of a license agreement could be pleaded both as a copyright claim and as a breach of contract.

Finally, “claims for [an] accounting based on the defendant’s alleged misappropriation and exploitation of a copyright work are preempted by the Copyright Act.” [Slip op. at 57]

Political Implications

Trump is well-known for filing meritless lawsuits against journalists and others, in an attempt to silence and/or deter criticism of him and his policies.  This lawsuit fits that pattern, although there are two reasons why it might be a little different.  First, as I opined in my initial blog post, although “Trump will almost certainly lose the lawsuit as it is currently framed,” nonetheless, I thought it was “not completely crazy,” and I opined that “an amended complaint … stands a significant chance of surviving a motion to dismiss.” (For now, at least, I was wrong about that.) Second, Trump did not ask for an injunction, only damages and an accounting of profits. On the other hand, that may have been strategic, as a request for an injunction would likely have put the judge into full “the First Amendment does not allow government censorship” mode. And any claim seeking $50 million in damages is likely to have a deterrent effect, whether meritless or not.

An interesting twist is that there has always been a third defendant in the case: Paramount Global, the parent company of Simon & Schuster as well as other media properties, such as CBS and Viacom.  In July 2024, Paramount Global announced a planned merger with Skydance Media.  That merger must still be approved by the Department of Justice; and it is widely believed that Paramount agreed to pay $16 million to settle a meritless lawsuit against CBS and 60 Minutes in order to smooth the way for the merger (which will net Paramount Chair Shari Redstone $2.5 billion). Three days after criticizing the settlement as a “big fat bribe,” late-night host Stephen Colbert announced that CBS was canceling his show, Late Night with Stephen Colbert, at the end of the season. Although the Trump v. Simon & Schuster lawsuit was filed well before the merger was planned, Trump will likely appeal the dismissal; and it is possible that he may demand a settlement in this case before the merger is approved.

Conclusion

The federal district court decided that 1) the twenty interviews in The Trump Tapes were not works of joint authorship, because neither party intended to be a joint author; 2) each interview is a unitary work, so that the questions and answers cannot be disaggregated and ownership cannot be divided between Woodward and Trump; 3) Trump does not have a copyright interest in the interviews, because Woodward was the person who “fixed” them “in a tangible medium of expression”; and 4) even though the interviews were fixed with Trump’s consent, they were not fixed “by or under [his] authority,” so he could not claim to be an author. It also held that his state-law claims were preempted by the Copyright Act.

While the court doubted that Trump could plead a claim sufficient to overcome a motion to dismiss, it gave Trump one more opportunity to move to amend, on the condition that the proposed Third Amended Complaint be attached, and that the motion explain how the defects identified in the ruling have been addressed. [Slip op. at 58]

If Trump chooses to stand pat and appeal the ruling, the court’s holdings are likely to be upheld on appeal; and even if Trump succeeds in defeating the motion to dismiss, he still has numerous obstacles to overcome on a motion for summary judgment (as explained in my prior blog post). Trump would be better advised to cut his losses and to abandon the case; but that is not in his nature. Instead, I expect him to appeal, and to use the planned merger with Skydance as leverage to try to extract a settlement from Paramount Global.

The post Trump’s Lawsuit Over The Trump Tapes is Dismissed (Trump v. Simon & Schuster) — Guest Blog Post  appeared first on Technology & Marketing Law Blog.

Geegieh v. Unknown Parties, 2025 WL 1769766 (D. Ariz. June 26, 2025)

The plaintiff claims that Doe “Defendants accused Plaintiff of being a convicted felon and published private information about his family. Plaintiff repeatedly requested that X Corp. remove the content but it failed to do so.” X moved to dismiss.

To get around X’s 230 defense, “Plaintiff argues that his claim against X Corp., in
relevant part, is the failure to disclose the identities of the individuals allegedly defaming Plaintiff. The Court is not aware of any valid cause of action that would compel X Corp. to disclose information regarding its users to Plaintiff.”

Instead, “the claims alleged in the FAC and the refashioned claims in Plaintiff’s Response are best understood as attempts to hold X Corp. liable for its moderation practices, which also enjoy § 230 immunity….assuming for a moment that Plaintiff considered X Corp. the publisher or speaker under a state law claim, the information at issue is provided by other users on X Corp.’s platform. These facts would satisfy the § 230 immunity requirements and therefore preclude Plaintiff’s claims.”

Citing Moody and others, the court says X also has a meritorious First Amendment defense.

Huckabee v. Meta Platforms, Inc., 2025 WL 1744357 (D. Del. June 24, 2025)

Prior blog post. I previously summarized the case:

Mike Huckabee is the former governor of Arkansas and Trump’s choice for ambassador to Israel. He claims that CBD advertisers featured his name, photo, and likeness in Facebook ads….As a result of these ads, allegedly “Governor Huckabee is now wrongly associated with the CBD industry.”

Huckabee sued Facebook for publicity rights violations and more. Facebook defended on Section 230. The District of Delaware court follows the Anderson v. TikTok case eliminating Section 230 in the Third Circuit, but nevertheless dismisses Huckabee’s case on the prima facie elements.

Huckabee asked for a reconsideration. In response, the court reiterates that Huckabee loses, but not because of Section 230.

Section 230

Given the reconsideration, Facebook argued the court got its prior Section 230 conclusion wrong. The court sticks to its position.

Facebook argued that the Anderson v. TikTok case only rejected Section 230 for content promotion, not content hosting, and Facebook is just hosting the scam ads. To be clear, my position is that the distinction between hosting and promotion is nonsensical–hosting is a form of content prioritization, so the line between hosting and promotion is illusory.

In any case, the court says that Huckabee sufficiently alleged that Facebook promoted the ads.

Further, the court said such a distinction wouldn’t help Facebook for [reasons I didn’t understand]. The court says “Immunity under Section 230 does not require that the underlying claims involve the promotion of the offending content. Nor does Section 230 immunity require parity between the grounds that inform immunity — here, the algorithmic decision-making that maximized the exposure of certain advertisements — and the allegations that inform the claims at issue — here, the allegations regarding Plaintiff’s state law claims.” Huh? Doesn’t this indicate that Section 230 should apply to both hosting and promotion? Or is the court saying that the Anderson opinion wiped out Section 230 for both hosting and promotion? That’s very clearly NOT what the Third Circuit said. However, because the Anderson opinion is trash, other courts are twisting themselves into logic pretzels trying to make it make sense.

Facebook also argued that the Arkansas publicity rights statute at issue in this case expressly says that it’s not an IP law for Section 230 purposes, thus expressly opting out Section 230’s exclusion for IP laws. (Note: I discussed what constitutes an “IP law” for Section 230 purposes in this piece). The court again responds in a confusing way: “neither Meta nor this Court may divine the scope of immunity under § 230 of the CDA, a federal statute, from § 1112(b) of the FBPPA, a state statute.” I guess the court is trying to say that if the Anderson ruling de facto repealed Section 230 in the Third Circuit, it doesn’t matter if the Arkansas legislature intended its publicity rights statute to be subject to it?

Publicity Rights Claim

Despite the Section 230 wipeout, Huckabee still loses on the prima facie elements.

In particular, the publicity rights statutory claim fails for lack of alleged scienter. Huckabee proposed to replead the scienter but he still can’t show Facebook knew of the alleged violation:

the alleged “review systems” and “ample opportunities” to “detect … misappropriated … images” amount to a “sheer possibility” that Meta knew of the misappropriation. Stated otherwise, the alleged “review systems” and “ample opportunities” are “merely consistent” with Plaintiff’s theory of scienter and stop “short of the line between possibility and plausibility of entitlement to relief.”…

that Meta reviews the accuracy of advertisements does not support the “reasonable inference” that Meta had the requisite scienter of misappropriation…

that Facebook, “one of the most dominant social media companies in the world,” has previously published a handful of images that were used without authorization hardly allows for the reasonable inference that Meta knew that the images of Plaintiff were also used without authorization…

the alleged failure of Meta to obtain [Huckabee’s] consent, where Meta is providing a forum in which the content is posted and employing an algorithm to determine the placement of that content, does not support a reasonable inference of Meta’s knowledge of misappropriation. Otherwise, Meta would be required, improvidently, to obtain the consent of the owner of every image on Facebook before posting content with that image.

Loveless v. Stiles, 2025 WL 1825553 (S.C. App. Ct. July 2, 2025)

This case involves a Facebook group “Deep Dive in D5,” which self-describes its purpose as “to share factual information about School District 5 of Lexington and Richland counties.” Loveless is a board member of the school district. Stiles is a group administrator.

The court says Stiles is not legally responsible for third-party statements posted to the group:

The CDA and its progeny of cases make clear that Stiles, as an information content provider, has no liability for other users’ statements…

We agree with Loveless that this case is slightly distinguishable from Zeran because Stiles posted both her own statements and was the administrator of the page where third-party statements were posted. However, we find this distinction does not remove the protections of the CDA as to the third-party statements.

The post Rounding Up Three Recent Section 230 Decisions appeared first on Technology & Marketing Law Blog.

Jaime Rogozinski, a/k/a “jartek,” created the r/WallStreetBets subreddit, which became notorious for (among other lowlights) its role as a venue for hyping meme stocks like Gamestop. Rogozinski sought a trademark registration for the term “WallStreetBets” and published a book with the term in the title. In response, Reddit temporarily suspended his account and terminated his moderator privileges for attempting to monetize a community. Reddit also sought its own trademark registration for WallStreetBets. Rogozinski sued Reddit over the trademark and for removing his moderator privileges.

The Ninth Circuit uncerimonously dismisses the case in a brief memo opinion.

The panel says that Rogozinski doesn’t have any trademark interest in the term “WallStreetBets”:

Rogozinski does not allege that he had previously used WALLSTREETBETS in commerce prior to its use on the r/WallStreetBets subreddit; and by Rogozinski’s own allegations, it was Reddit that created and provided the services that enabled Reddit’s many users to contribute to the discussion on the r/WallStreetBets subreddit by, for example, posting and engaging with one another about various trading strategies.

Section 230 precludes his ancillary state-law claims, such as the publicity rights claim, over user content posted after Rogozinski lost control over the subreddit. Rogozinski’s weak 230 workaround attempt doesn’t go anywhere:

the only allegation in the Complaint suggesting that Reddit was even partially responsible for content posted on r/WallStreetBets after Rogozinski’s suspension is that Reddit once “partnered” with r/WallStreetBets moderators to provide users with digital artwork. But that is not enough to state a right-of-publicity claim because nothing in that artwork is alleged to have had any “uniquely distinguishing features” that made the offending content “peculiar to” Rogozinski.

[The last sentence cites to the classic Motschenbacher case involving the distinctive orange race car featured in the Winston cigarette TV commercial].

The contract-related claims fail because Reddit didn’t violate any of its promises, given that Reddit’s TOS had a standard “we can do whatever we want” provision.

The whole meme stock phenomenon is super-interesting, but this particular case devolved into a banal and rather routine failed account termination lawsuit.

Case Citation: Rogozinski v. Reddit, Inc., 2025 WL 1650019 (9th Cir. June 11, 2025)

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Separately, he brought a lawsuit over the “Are We Dating the Same Guy?” Facebook group, run by Spill the Tea, “where women can empower each other and keep each other safe from toxic men.” (You can see the group here, but it appears that the group moderation has broken down, so recent posts are garbage).

Abbigail Rajala made the following post about D’Ambrosio to the Chicago subboard, with 100k+ members:

We met organically in Chicago two and a half months ago. Very clingy and very fast. Flaunted money very awkwardly and kept talking about how I don’t want to see his bad side, especially when he was on business calls. He came to see me yesterday and I explained how I didn’t really want to stay the night. I just wanted to spend the day together, and this was his response… [followed by screenshots with unkind remarks purporting to come from D’Ambrosio]

According to the court, D’Ambrosio “sued anyone remotely associated with those posts for all possible, imaginable claims, including the woman who dated him and her parents, women commenting on posts, the operators of the Facebook group, and Facebook itself.” It does not go well for him.

Illinois Publicity Rights

the fact that his name and photo appear in a Facebook group is not enough to allege an IRPA claim. His “identity must help sell something—whether it is that product or a separate product or service.”…

D’Ambrosio does not allege that Meta was using his identity to sell or advertise a product. Instead, D’Ambrosio’s theory is that a third-party post about him necessarily drove user engagement and therefore Meta’s advertising revenue. But that does not equate to Meta using D’Ambrosio’s identity as an advertisement….D’Ambrosio’s name and photo were not used to entice Facebook users to purchase a product

Defamation

D’Ambrosio can’t allege defamation per se because “the women in the “Are We Dating the Same Guy?” Facebook group were commenting on D’Ambrosio’s dating etiquette, not his professional ability….Abbigail Rajala did not accuse D’Ambrosio of job-related poor performance or an inability to function at his job, just his commentary on how he might appear to her.” (Plus, the court notes that while he’s in prison, his job prospects are limited).

Also, Rajala’s comments were opinions, not verifiable facts. “Abbigail Rajala gave her opinion of what D’Ambrosio was like to date.”

Doxing

The relevant statute applies when a defendant intentionally published the plaintiff’s “personally identifiable information without the consent of the person whose information is published.” These anti-doxxing statutes pose significant danger to online discourse such as the disclosure of truthful negative facts, especially when plaintiffs can weaponize private rights of action. Fortunately, it proves inconsequential here:

• “D’Ambrosio never alleges that Defendants published his full name in the Facebook group”
• “The statute goes on to list what types of information could be linked to a person, including social security number, home address, phone number, email address, or employment information. But D’Ambrosio does not allege that any such information was ever posted in the group.”
• “Public and innocuous photos, like the ones of D’Ambrosio,” don’t qualify as PII.
• The statute requires scienter and harm attributes that D’Ambrosio didn’t allege.

Despite the dismissal, I view this case as a warning sign of how anti-doxxing statutes will contribute to lots of meritless and problematic litigation.

Strict Products Liability

“D’Ambrosio alleges problems with Meta’s app and algorithm, but his allegations do not establish that these are products and not service platforms.”

Negligence

“D’Ambrosio alleges Meta was negligent in numerous ways when designing, developing, and monitoring its app, algorithm, and social media platform.” D’Ambrosio mishandled the pleadings, but also, he said he never used Facebook, which eliminates the possibility that Facebook owed him a duty.

Section 230

The court says it doesn’t need to address Section 230 because the claims all fail on their prima facie elements. ONCE AGAIN, Section 230 reform would not change the outome of this case.

Summary

While “D’Ambrosio objects to the idea that women in Chicago, and nationally, have a private invite-only forum in which they are able to discuss and potentially warn other women against men’s dating habits and that he personally detested being discussed in that group, the statements made about him do not amount to defamation, false light invasion of privacy, or doxing.”

Implications

This is not a #MeToo case, but it’s closely related to that genre. In both circumstances, women are trying to hold men accountable for actual or perceived misbehavior, and men are weaponizing legal tools to undermine or avoid such accountability. Section 230 has played a key role in helping empower women, but as this court ruling shows, it’s not the only legal tool to protect those conversations from legal overreach.

Still, merely being sued is itself a form of punishment and suppression, and a clean legal victory for the women here doesn’t actually remediate their legal victimization as defendants. The risks of defendant-victimization is something that every legislature should evaluate closely when creating new private rights of action, i.e., the legislatures should game out how plaintiffs can misuse the law and provide mechanisms for defendant-victims to be made whole. I fear legislatures have done an incomplete job of this adversarial wargaming when enacting new sui generis laws like anti-doxxing statutes. Defendant-victimization is also a main justification for broadly applicable anti-SLAPP laws. If Illinois’ anti-SLAPP law was not robust enough to protect the defendants here, the Illinois legislature ought to reconsider it.

Case Citation: Nikko D’Ambrosio v. Rajala, 2025 WL 1383286 (N.D. Ill. May 13, 2025)

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