Numerous lawsuits have been filed claiming social media services “materially support” terrorists because terrorist groups disseminate their content via the services. 1-800-LAW-FIRM (I kid you not) is behind most of these lawsuits. I’ve been baffled by the proliferation of these lawsuits because they seem doomed, yet more cases have been filed even after two courts (in Fields v. Twitter and Cohen v. Facebook) have thoroughly rejected them. Now, a third court has echoed and extended the prior two dismissals, reinforcing why I think all of these lawsuits will fail.

This lawsuit involves YouTube. The plaintiffs allege that ISIS posted YouTube videos and these videos proximately caused the plaintiffs’ deaths in a terrorist attack in Paris. YouTube moved to dismiss on Section 230 grounds.

Before addressing the merits of the Section 230 defense, the court reaches three helpful preliminary conclusions:

• Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA) in 2016 to expand civil claims based on material support for terrorists. The plaintiff argued that the later-enacted JASTA repeals Section 230. The court disagrees, concluding that JASTA didn’t expressly or impliedly repeal Section 230.
• Section 230 applies to extraterritorial (i.e., international) conduct. Cite to Cohen.
• Civil claims based on federal crimes are preempted by Section 230. Cites to Cohen and Doe v. Backpage.

The court then addresses the merits of the Section 230 immunity.

Like the prior cases, the plaintiffs argued that it was suing for YouTube’s provision of accounts to ISIS, not for content published via the accounts. The court restates that the plaintiffs’ argument “essentially tries to divorce ISIS’s offensive content from the ability to post such content.” The court is unpersuaded:

The SAC is replete with detailed descriptions of the actual content that ISIS has posted on YouTube in furtherance of its terrorist activity, including over 15 pages of allegations of “ISIS’s extensive use of Google’s services” to disseminate its terrorist message. In this way, Plaintiffs’ claims are inextricably bound up with the content of ISIS’s postings, since their allegations describe a theory of liability based on the “essential” role that YouTube has played “in the rise of ISIS to become the most feared terrorist organization in the world.”…If the court were to apply Plaintiffs’ logic and ignore the content of any ISIS-related YouTube postings in construing Plaintiffs’ claims, it would be impossible to discern a causal basis for Google’s alleged responsibility for the terrorist attacks.

The court easily concludes: “Plaintiffs seek to treat Google as the publisher of ISIS’s video content.”

Riffing on the same theme, the plaintiffs claimed YouTube loses Section 230 immunity by “allowing accounts that are taken down to rapidly ‘reconstitute’ by permitting bulk friend/follow requests, and failing to take steps to minimize or mitigate ‘incremental naming’ of accounts.” Citing Roommates.com, the court responds: “Plaintiffs seek to hold Google liable for failing to adopt a strategy to defeat activity such as account reconstitution and bulk friend/follow requests; to the extent the objective of such a strategy is to control who can publish content, section 230(c)(1) immunizes Google’s decision not to adopt that strategy.”

The plaintiffs also claimed that YouTube helped develop ISIS’s content by delivering targeted ads around the videos. As the court flatly responds: “This theory finds no support in the case law.” Citing Roommates.com (again) and Jones v. DirtyWorld, the court explains:

Plaintiffs do not allege that Google “materially contribut[ed]” in any way to the actual content of ISIS’s YouTube videos. They do not claim that Google’s ads (which are themselves third-party content) are objectionable, or that the ads played any role in making ISIS’s terrorist videos unlawful.

The court also suggests that YouTube’s ad targeting algorithm is “content neutral.” Thus, “Google’s provision of neutral tools, including targeted advertising, does not equate to content development under section 230, because as currently alleged, the tools do not encourage the posting of unlawful or objectionable material….Google’s ad pairings do nothing to enhance the unlawfulness of ISIS videos, encourage the posting of ISIS videos, or make posting ISIS videos easier.”

It’s also irrelevant that YouTube may share ad revenues with ISIS, citing to Blumenthal v. Drudge and Roommates.com, and distinguishing Accusearch because YouTube didn’t actively solicit, or develop the content of, ISIS’s videos.

Out of an abundance of caution, the court gives the plaintiffs the opportunity to file a (third) amended complaint, and I’m sure the plaintiffs will try again. However, the court’s opinion leaves little room for the plaintiffs to marshal better facts that will change the result. So I expect the plaintiffs’ additional attempt will fail. Furthermore, this opinion is thoughtful and well-constructed, so it should fare well on appeal if the case gets that far.

Although this is a nice Section 230 ruling, I have a pit in my stomach about how good rulings like this could turn into a long-term strategic loss. To me, the support-to-terrorist laws closely parallel the support-to-sex-traffickers laws. Both statutory schemes have broad criminal provisions, expansive secondary liability doctrines, supporting federal civil claims, tragic and sympathetic victims, and political toxicity for any opposition. (Though I’ll note one key difference: much content published by terrorists qualifies for the First Amendment, while Backpage v. Lynch suggested that sex trafficking ads never qualify for the First Amendment). Thus, if Congress passes SESTA/the Wagner bill, it will provide a template for similar reform to exclude terrorist victim claims from Section 230. In other words, when courts resoundingly embrace Section 230 as an immunity to wipe away terrorist victim claims, it could have an unfortunate side effect of providing more fuel for statutory reform advocates.

Meanwhile, the Fields v. Twitter case is on appeal to the Ninth Circuit, which will hear oral arguments in early December. If the Ninth Circuit affirms, I’m hoping that ruling will quell the existing lawsuits against social media sites and discourage new ones. Any other result will produce a litigation fiesta.

Case citation: Gonzalez v. Google, Inc., 2017 WL 4773366 (N.D. Cal. Oct. 23, 2017)

The post Another Court Rejects ‘Material Support To Terrorists’ Claims Against Social Media Sites–Gonzalez v. Google appeared first on Technology & Marketing Law Blog.

Uber does not force its users to check the box during the sign up process indicating users’ assent to the terms. The court is thus forced to evaluate whether the plaintiff (Meyer) is on actual or inquiry notice, and whether he indicated assent.

The court takes a tour through the familiar landscape of online agreements, ranging from “browsewraps” to “sign-in wraps” to “scrollwraps.” This particular agreement does not appear to fit neatly into any of those categories, in that at the time of sign-up, the user is presented with hyperlinks to bold text that states:

By creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.

The key question is whether Uber’s presentation of this text and (link) was reasonably conspicuous. The court says yes. Looking at the question from the perspective of a “reasonably prudent smartphone” user, and taking into the account the ubiquity of apps, the court presumes some familiarity with the phone-based contracting process:

a reasonably prudent smartphone user knows that text that is highlighted in blue and underlined is hyperlinked to another webpage where additional information will be found.

The court further says that the sign-in (payment screen) is “uncluttered,” the user does not need to scroll to see the hyperlinked terms, and the terms are in dark print which contrasts with the bright white background. The court contrasts the placement of the hyperlinked terms with those of Nicosia, where the court said that it was debatable whether an Amazon user was on inquiry notice of the terms.

The court also distinguishes another case, Schnabel, where the court declined to enforce online terms (in that instance emailed after the fact). The court says that the notice is “temporally coupled” with the registration process.

Citing Fteja, the court says the availability of the terms by hyperlink doesn’t change the analysis:

As long as the hyperlinked text was itself reasonably conspicuous ‐‐ and we conclude that it was ‐‐ a reasonably prudent smartphone user would have constructive notice of the terms. While it may be the case that many users will not bother reading the additional terms, that is the choice the user makes

Finally, the court says that the manifestation of assent is sufficient. The fact that clicking the register button has two functions does not undermine Meyer’s assent.

__

Courts’ treatment of the online contracting process is a mess, as an August round up post from last year noted. This case, and the conflicting conclusions between the district court and the appeals court, is a good illustration of the unpredictable outcomes. Courts make a lot of assumptions in employing the reasonably prudent consumer (or in this case smartphone user) test, so the outcome is truly judge-dependent.

There is an easy solution: courts should force companies to set up contracting processes that leave little room for doubt. Perhaps courts take the perspective that it’s all academic anyway. Even if Uber had required a consumer to check the box, this is no guarantee that a customer read and agreed to the terms. Perhaps courts are simply dispensing with the legal fiction of user assent to online terms?

Bonus EDNY track: Starke v. SquareTrade involved terms that were not presented to the user at the time of purchase. SquareTrade sells protection plans for consumer products. It emails the protection plan contracts after the purchase occurs. The court says post-sale confirmation emails sent by SquareTrade did not make the applicable terms “readily and obviously available.” The terms were not contained in the body of the email, and the link was buried. The court cites to a test from Berkson v. Gogo and says it has been cited favorably by federal and state trial courts. We have blogged a few cases where it’s not readily feasible for a company to present and obtain agreement to terms at the time of payment. There is not an easy solution in practice. Perhaps SquareTrade should have made the contract itself downloadable and forced the user to click that he or she agreed to it? SquareTrade had an opportunity to require the customer to check the box when the customer is asked to submit the underlying receipt which SquareTrade offers to track, but it failed to do so.
__

Eric’s Comments:

* I agree 100% with Venkat that the state of online contract formation law is a mess. Mostly I blame the proliferation of “wrap” nomenclature, with definitions that overlap and thus guarantee judicial confusion. The proliferation of “wrap” terminology has also effectively raised the bar for online contract formation. Not that long ago, it was 100% clear that a “clickthrough” agreement included a user interface where the “register” button (or whatever it was called) simultaneously communicated the user’s desire to proceed and agreement with terms that had been linked. Now, because of misconstruction of the “clickwrap” and “browsewrap” terms (and don’t get me started on BS like “scrollwrap” and “sign-in-wrap”), an online contract formation probably requires an extra checkbox and user click to assent to the terms, just to avoid courts reaching unexpected and even stupid results. As Venkat suggests, maybe this is a net win for our community, as companies adopt more “judge-proof” implementations that leave no room for doubt. Still, we should not have had to go this far, yet here we are.

* Another possible explanation for the doctrinal mess is the Second Circuit, which has swung between some strongly pro-contract-formation rulings like the Register.com v. Verio ruling and perhaps this one; and a number of strongly anti-contract formation rulings, such as the Sgouros or Nicosia cases. While it might be possible to draw a coherent line to show how all of the Second Circuit online contract formation cases cohere, it might be easier to show that the results aren’t really consistent with each other and the circuit is careening between formation jurisprudential extremes from panel to panel.

* Once again, the court reverts to standard principles of contract formation law rather than relying on categorizing the “wrap” flavor. That’s the good news. The bad news is that the court, in what is seemingly dicta, goes ahead and adopts definitions for the various “wrap” flavors, including the “scrollwrap” and “sign-in-wrap” terms first offered in the Berkson case. Oh great. So will future Second Circuit courts similarly revert to default formation principles, or will they cite the dicta definitions? We all know how that will turn out.

So here are the newly polished Second Circuit definitions:

– clickwrap/clickthrough agreements “require users to click an ‘I agree’ box after being presented with a list of terms and conditions of use.” Recall my assertion above that this definition has tightened up substantially over the years.
– “browsewraps” (a term I still believe you should never use except with derision) “generally post terms and conditions on a website via a hyperlink at the bottom of the screen”
– “scrollwraps” (Never use this term. NEVER) “require the user to scroll through the terms before the user can indicate his or her assent by clicking ‘I agree.'” This used to be a clickthrough agreement.
– “sign-in-wraps” (another term you should NEVER use) “notify the user of the existence of the websiteʹs terms of use and, instead of providing an ‘I agree’ button, advise the user that he or she is agreeing to the terms of service when registering or signing up.” This also used to be a clickthrough agreement.

Where did Uber’s presentation fit in this spectrum? The court doesn’t say! After some exposition of the definitions, the court says: “Classification of web‐based contracts alone, however, does not resolve the notice inquiry.” Great–I agree! But why then did the court discuss the classification system at all, especially if the court didn’t use any of the definitions to resolve where to place Uber’s presentation???

* As for default contract formation law, this case generates this legal standard:

Where there is no evidence that the offeree had actual notice of the terms of the agreement, the offeree will still be bound by the agreement if a reasonably prudent user would be on inquiry notice of the terms….only if the undisputed facts establish that there is ʺ[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those termsʺ will we find that a contract has been formed…

Insofar as it turns on the reasonableness of notice, the enforceability of a web‐ based agreement is clearly a fact‐intensive inquiry. Nonetheless, on a motion to compel arbitration, we may determine that an agreement to arbitrate exists where the notice of the arbitration provision was
reasonably conspicuous and manifestation of assent unambiguous as a matter of law.

The court doesn’t clearly explain why the plaintiff didn’t have actual notice of the terms. The court says “Meyer attests that he was not on actual notice of the hyperlink to the Terms of Service or the arbitration provision itself, and defendants do not point to evidence from which a jury could infer otherwise.” But plaintiffs will routinely deny getting actual notice, and the court doesn’t tell us what other persuasive evidence Uber could have adduced. As Venkat suggests, would a checkbox just for acknowledgement and acceptance of the terms have placed Uber in the “actual notice” category? Who knows.

The court turns to the reasonableness of Uber’s notice. First, it articulates the “reasonably prudent smartphone user” standard:

when considering the perspective of a reasonable smartphone user, we need not presume that the user has never before encountered an app or entered into a contract using a smartphone.  Moreover, a reasonably prudent smartphone user knows that text that is highlighted in blue and underlined is hyperlinked to another webpage where additional information will be found

The court doesn’t say so expressly, but this ruling pretty clearly seems to overturn the June 2017 SDNY Applebaum v. Lyft ruling, where the court had said: “A reasonable consumer would not have understood that the light blue “Terms of Service” hyperlinked to a contract for review. Lyft argues that coloring words signals “hyperlink” to the reasonable consumer, but the tech company assumes too much. Coloring can be for aesthetic purposes. Courts have required more than mere coloring to indicate the existence of a hyperlink to a contract…. Beyond the coloring, there were no familiar indicia to inform consumers that there was in fact a hyperlink that should be clicked and that a contract should be reviewed, such as words to that effect, underlining, bolding, capitalization, italicization, or large font.” That sounds like it’s no longer good law in the Second Circuit.

As a result, the court expressly endorses Uber’s approach:

The Payment Screen is uncluttered, with only fields for the user to enter his or her credit card details, buttons to register for a user account or to connect the userʹs pre‐existing PayPal account or Google Wallet to the Uber account, and the warning that ʺBy creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.ʺ The text, including the hyperlinks to the Terms and Conditions and Privacy Policy, appears directly below the buttons for registration. The entire screen is visible at once, and the user does not need to scroll beyond what is immediately visible to find notice of the Terms of Service. Although the sentence is in a small font, the dark print contrasts with the bright white background, and the hyperlinks are in blue and underlined.

[plus the “temporal coupling” Venkat mentions:] notice of the Terms of Service is provided simultaneously to enrollment, thereby connecting the contractual terms to the services to which they apply. We think that a reasonably prudent smartphone user would understand that the terms were connected to the creation of a user account.

The court concludes: ” A reasonable user would know that by clicking the registration button, he was agreeing to the terms and conditions accessible via the hyperlink, whether he clicked on the hyperlink or not.” Contract formed!

* So what implications does this ruling have for Uber’s other contract formation cases involving mandatory arbitration? This opinion is a powerful endorsement of Uber’s practices, so it seems to position Uber well to roll up the caselaw in other jurisdictions, at least those cases predicated on the same user interface interpreted here. Furthermore, Lyft’s contract formation process got an indirect boost as well, so expect it to enthusiastically cite this ruling too.

Case citation: Meyer v. Uber Technologies, Inc., 2017 WL 3526682 (2d Cir. Aug. 17, 2017)

Related posts:

Judge Declines to Enforce Uber’s Terms of Service–Meyer v. Kalanick

Anarchy Has Ensued In Courts’ Handling of Online Contract Formation (Round Up Post)

Second Circuit Says Arbitration Clause in Terms Emailed After-the-Fact Not Enforceable – Schnabel v. Trilegiant

Evidentiary Failings Undermine Arbitration Clauses in Online Terms

Court Enforces Arbitration Clause in Amazon’s Terms of Service–Fagerstrom v. Amazon

‘Flash Sale’ Website Defeats Class Action Claim With Mandatory Arbitration Clause–Starke v. Gilt

Some Thoughts On General Mills’ Move To Mandate Arbitration And Waive Class Actions

Second Circuit Says Arbitration Clause in Terms Emailed After-the-Fact Not Enforceable – Schnabel v. Trilegiant

Users Can’t Sue Sony for Changing Online Terms to Require Arbitration – Fineman v. Sony Network Entertainment

Qwest Gets Mixed Rulings on Contract Arbitration Issue—Grosvenor v. Qwest & Vernon v. Qwest

Zynga Wins Arbitration Ruling on “Special Offer” Class Claims Based on Concepcion — Swift v. Zynga

“Modified Clickwrap” Upheld In Court–Moule v. UPS

Facebook Gets Bad Ruling In Face-Scanning Privacy Case–In re Facebook Biometric Information Privacy Litigation

Defective Call-to-Action Dooms Online Contract Formation–Sgouros v. TransUnion

Court Rejects “Browsewrap.” Is That Surprising?–Long v. ProFlowers

Telephony Provider Didn’t Properly Form a “Telephone-Wrap” Contract–James v. Global Tel*Link

2H 2015 Quick Links, Part 7 (Marketing, Advertising, E-Commerce)

Second Circuit Enforces Terms Hyperlinked In Confirmation Email–Starkey v. G Adventures

If You’re Going To Incorporate Online T&Cs Into a Printed Contract, Do It Right–Holdbrook v. PCS

Clickthrough Agreement Upheld–Whitt v. Prosper

Online Magazine Gets Section 230 Protection For Third Party Article–AdvanFort v. International Registries

The “Browsewrap”/”Clickwrap” Distinction Is Falling Apart

Safeway Can’t Unilaterally Modify Online Terms Without Notice

Clickthrough Agreement With Acknowledgement Checkbox Enforced–Scherillo v. Dun & Bradstreet

How To Get Your Clickthrough Agreement Enforced In Court–Moretti v. Hertz

Judge Can’t Decide if Facebook’s User Agreement is a Browsewrap, But He Enforces It Anyways–Fteja v. Facebookb

The post Uber’s Contract Upheld in Second Circuit–Meyer v. Uber appeared first on Technology & Marketing Law Blog.

There are some groups who have been critical of this effort to hold backpage accountable and stop this online exploitation. They have suggested that this bipartisan bill could impact mainstream websites and service providers—the good actors out there. That is false. Our bill does not amend, and thus preserves, the Communications Decency Act’s Good Samaritan provision. This provision protects good actors who proactively block and screen for offensive material and thus shields them from any frivolous lawsuits. That is in the legislation and needs to be in there.

This positioning makes it sound like websites who object to SESTA are overreacting–why should they complain if they still have immunity? Unfortunately, Sen. Portman’s statement is flat-out wrong, and it’s such an egregious mistake that it makes me question if he and his co-sponsors actually understand the language in their bill (or Section 230, for that matter).

Section 230 has two main operative provisions. Section 230(c)(1) says websites aren’t liable for third party content. Section 230(c)(2) says websites aren’t liable for filtering content they consider offensive. Sen. Portman’s statement indicates that he thinks SESTA would create new exclusions only to Section 230(c)(1) and would not amend 230(c)(2). However, the bill clearly changes both 230(c)(1) and 230(c)(2) equally.

Section 230(e) enumerates four modifications to the immunity, including Section 230(e)(1), which the bill would amend to read (new language bolded):

Nothing in this section shall be construed to impair (A) the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, Section 1591 (relating to sex trafficking) of that title, or any other Federal criminal statute or (B) any State criminal prosecution or civil enforcement action targeting conduct that violates a Federal criminal law prohibiting (i) sex trafficking of children; or (ii) sex trafficking by force, threats of force, fraud, or coercion.

The bill also would create a new Section 230(e)(5):

No effect on civil law relating to sex trafficking. Nothing in this section shall be construed to impair the enforcement or limit the application of section 1595 of title 18, United States Code

The added language to Section 230(e)(1) and the new Section 230(e)(5) would expose Internet services to countless new enforcement actions by state law enforcement and civil plaintiffs.

Notice how both Section 230(e)(1) and the proposed Section 230(e)(5) start off with the statement: “Nothing in this section shall be construed to impair…” The only possible reading of “nothing in this section” is that it refers to all of Section 230, including both Section 230(c)(1) and (c)(2). I didn’t find any cases interpreting what “this section” means, but I found several cases implying that Section 230(c)(2) is subject to Section 230(e)’s exceptions. See, e.g., e360Insight, LLC v. Comcast Corp., 546 F.Supp.2d 605 (N.D. Ill. 2008); Holomaxx Technologies v. Microsoft Corp., 783 F.Supp.2d 1097 (N.D. Cal. 2011); Milo v. Martin, 311 S.W.3d 210 (Tex. Ct. App. 2010) (concurring opinion); Davis v. Motiva Enterprises, L.L.C., 2015 WL 1535694 (Tex. Ct. App. Apr. 2, 2015). Applying standard methods of statutory construction, Section 230(c)(1) and (c)(2) are equally affected by the existing and proposed Section 230(e) exceptions. As a result, Section 230(c)(2) would not limit any new enforcement actions unleashed by the proposed amendments.

[Note 1: Gucci America v. Hall & Associates, 135 F.Supp.2d 409 (SDNY 2001) contains a sentence saying: “Immunizing Mindspring from Plaintiff’s claims, therefore, would “limit” the laws pertaining to intellectual property in contravention of § 230(c)(2).” Although this language seemingly confirms my analysis, I believe the Section 230(c)(2) reference is a typo. The court meant to say 230(e)(2), a correction noted by Ford Motor v. GreatDomains.com, 2001 WL 1176319 (E.D. Mich. Sept. 25, 2001) when quoting this exact language.]

[Note 2: a few cases, including the Seventh Circuit’s Doe v. GTE and Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist cases, have suggested that Section 230(c)(1) acts as a definitional section for Section 230(c)(2). These cases make a strained reading of the statute, but they also would further undermine Sen. Portman’s statement because, under this reading, Section 230(c)(2) would be the only operational immunity the bill could amend.]

Because I don’t see any possible way of interpreting the statutory language to say that Section 230(c)(2) is subject to different exclusions than Section 230(c)(1), Sen. Portman’s claims to the contrary appear to be a misreading of the existing statute or a misunderstanding of how the bill fits into the existing statutory language. Of course, Congress could easily effectuate Sen. Portman’s claim through different drafting. Instead of preceding Section 230(e)(1) and (e)(5) with “Nothing in this section…” the amendment could say “Nothing in Section 230(c)(1)…” thereby making Section 230(c)(2) not subject to those exclusions.

There is another problem with Sen. Portman extolling Section 230(c)(2)’s protection: it’s basically a defunct safe harbor that does not provide much protection from “frivolous” lawsuit. Unlike Section 230(c)(1), Section 230(c)(2) has a good faith requirement, i.e., to qualify for the safe harbor, the website’s filtering decisions must be made in good faith. Plaintiffs can, and routinely will, allege that the defendant made a filtering decision in subjective bad faith, and courts routinely let those generic and unsupported allegations defeat a motion to dismiss. Thereafter, plaintiffs can do expensive and intrusive discovery into the website’s subjective intent, raising defense costs substantially and extending the case to summary judgment or possibly a trial. As a result, few if any websites actually rely on Section 230(c)(2)’s protection; everyone relies on Section 230(c)(1). Indeed, we’ve recently seen filtering cases–where Section 230(c)(2) clearly should have applied–decided on 230(c)(1) grounds instead. See, e.g., Sikhs for Justice v. Facebook. It appears Sen. Portman may not understand how Section 230(c)(2) has effectively failed in the field.

I hope this blog post helps explain why so many in the Internet community have expressed grave concerns about SESTA’s effects despite Sen. Portman’s efforts to marginalize the concerns. The sponsors apparently think the bill wouldn’t change Section 230 for “good actors” when in fact it would eviscerate the immunity.

Related posts

* Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
* The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
* WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
* The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity

The post Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong appeared first on Technology & Marketing Law Blog.

* NY Times: From Headline to Photograph, a Fake News Masterpiece

* Data and Society: Media Manipulation and Disinformation Online

* Wired: Inside the Macedonian Fake-News Complex

* Mark Verstraete, Derek E. Bambauer, & Jane R. Bambauer, Identifying and Countering Fake News:

* Combating Fake News: An Agenda for Research and Action, May 2017

* David O. Klein and Joshua R. Wueller, Fake News: A Legal Perspective, Journal of Internet law, April 2017

* Columbia Journalism Review: Study: Breitbart-led right-wing media ecosystem altered broader media agenda

* ABA Journal: Lies and Libel: Fake news lacks straightforward cure

* Time: Inside Russia’s Social Media War on America

* WSJ: Document: Russia Uses Rigged Polls, Fake News to Sway Foreign Elections

* NY Times: With Big Red Stamp, Russia Singles Out What It Calls ‘Fake’ News

* NY Times: The Battle Over Your Political Bubble

* Ars Technica: State Department concocting “fake” intellectual property “Twitter feud”

* Washington Post: Spreading fake news becomes standard practice for governments across the world

Right to be Forgotten

* Techcrunch: Google wins ‘right to be forgotten’ battle in Japan

* Michael  Geist: Did a Canadian court just establish a new right to be forgotten online?

* From India: The Supreme Court of India today directed Google, Yahoo and Microsoft to set up an in-house mechanism to remove online search results, which has “potential to go counter”to Section 22 of the Pre-Conception & Pre-Natal Diagnostic Techniques Act, 1994 (Act).

* Techdirt: Feds Say Jewelry Company CEO Scrubbed Google Results With Fake Court Orders And Forged Judge’s Signatures

* In IMDb v. Becerra, the case over the statute requiring the removal of actors’ age information from IMDb’s database, the court blasted California’s discovery requests:

the government’s discovery requests are more than annoying. They’re disturbing….It’s one thing for a legislature to enact a speech restriction without an adequate justification. That sometimes happens. It’s another thing for the government’s lawyers to double down on their client’s constitutional error by imposing irrelevant, burdensome, even harassing discovery obligations on a party that seeks only to vindicate its First Amendment rights in court. That should never happen.

* The Street: A “right to be forgotten”/expungement in FINRA’s BrokerCheck reputational database makes it of dubious credibility

Censorship

* Milton Mueller: Internet Fragmentation Exists, But Not In the Way That You Think

* NY Times: Clearing Out the App Stores: Government Censorship Made Easier

* Vice: Apple’s Long History of Rejecting ‘Objectionable Content’ From the App Store

* Nathan Cortez, Regulation by Database, University of Colorado Law Review, Vol. 89, 2017. A critical examination of how it’s different when governments publish information about their constituents, especially for purposes of shaming them.

* Reuters: North Korea uses sophisticated tools to spy on citizens digitally – report

* Inside Higher Ed: “The University of California, Berkeley, will cut off public access to tens of thousands of video lectures and podcasts in response to a U.S. Justice Department order that it make the educational content accessible to people with disabilities.”  If you’re looking for paper topic, the ADA as a censorship tool might be an intriguing one.

* Bored Panda: Artist Uses 100,000 Banned Books To Build A Full-Size Parthenon At Historic Nazi Book Burning Site

China

* TorrentFreak: China Bans Unauthorized VPN Services in Internet Crackdown

* Reuters: China to further tighten its internet controls

* Reuters: ‘Sing the motherland’: China tightens rules for online content. Followup: China’s bloggers, filmmakers feel chill of internet crackdown

* Reuters: China’s cyber watchdog orders top tech platforms to increase self-censorship

* Reuters: Apple is removing VPN services from China App Store: providers

* NY Times: Silicon Valley Giants Confront New Walls in China

* NY Times: Apple Removes Apps From China Store That Help Internet Users Evade Censorship

* NY Times: Joining Apple, Amazon’s China Cloud Service Bows to Censors

* Reuters: China not to license Pokemon Go, similar games as it weighs security risks

Russia

* Reporters Without Borders: Russian parliament certifies free Internet’s death

* Reuters: Putin bans VPNs to stop Russians accessing prohibited websites

Extremist Content

* Wired: The One Hire Facebook Really Needs to Make to Curb Violence

* Facebook: Hard Questions: How We Counter Terrorism

* The Switch: Facebook adds 3,000 employees to screen for violence as it nears 2 billion users

* Wired: AI Isn’t Smart Enough (Yet) to Spot Horrific Facebook Videos

* Daphne Keller: Making Google the Censor:

making private companies curtail user expression in important public forums — which is what platforms like Twitter and Facebook have become — is dangerous. The proposed laws would harm free expression and information access for journalists, political dissidents and ordinary users. Policy makers should be candid about these consequences and not pretend that Silicon Valley has silver-bullet technology that can purge the internet of extremist content without taking down important legal speech with it….Governments that outsource speech control to private companies can effectively achieve censorship by proxy….Filters that can find child sexual abuse images work relatively well because those images are illegal in every instance. But violent and extremist material is different. Almost any such image or video is legal in some context. Filters can’t tell the difference between footage used for terrorist recruitment and the same footage used for journalism, political advocacy or human rights efforts.

* Google: Four steps we’re taking today to fight terrorism online

* The Guardian: Revealed: Facebook exposed identities of moderators to suspected terrorists

* Wired: Hacking Online Hate Means Talking to the Humans Behind It

* The Guardian: May and Macron plan joint crackdown on online terror

* Washington Post: YouTube is tricking people who search for ISIS videos

* YouTube: An update on our commitment to fight terror content online

* EFF: Industry Efforts to Censor Pro-Terrorism Online Content Pose Risks to Free Speech

* EFF: Payment Processors Are Profiling Heavy Metal Fans as Terrorists

The post 1H 2017 Quick Links Part 7 (Fake News, RTBF, Censorship, Extremist Content) appeared first on Technology & Marketing Law Blog.

The latest lawsuit involves the homeowners’ association for 111 East Chestnut Street (Chicago), a high rise near Chicago’s Magnificent Mile. A few self-described “troublemaker” residents (as they proudly declare, “We’re the sand in the oyster”) run a blog monitoring the association, including breaking news coverage on issues like a cost overrun on hallway renovations and repairs made using “degraded cement.” After an election for association leadership, a losing candidate blogged that the winner, Milazzo, rigged the election; subsequent posts accused the winner of other malfeasances. One post linked to Milazzo’s business website for his dental practice. Due to the blogging, Milazzo claimed that “his dental practice experienced a decline in: (1) patient visits from 546 to 428; (2) new patients from 351 to 268; and (3) total days worked from 162 to 104 (annualized).”

The defamation claim fails. The vote rigging discussion expressly acknowledged it lacked supporting evidence. The discussion claiming Milazzo broke 3 laws didn’t specify which laws. The blog posts that “portray Milazzo as an unsavory, untrustworthy and crooked president incapable of effectively operating the condominium association” were all protected opinions and weren’t capable of verification. Regarding some blogged statements, the court says “an investigation of those claims would be fruitless given their overly vague, broad and conclusory nature lacking any basis in fact.” The court summarizes:

the statements consist of the author’s unsubstantiated rhetoric and opinionated editorial comments, often times resorting to hyperbole…a reasonable reader would not interpret the five blog posts as depicting verifiable facts, but, instead, would understand them as unsubstantiated opinions about Milazzo

The court doesn’t expressly adjust the defamation standards because it’s a blog, but this ruling is consistent with others that have treated blogs as categorically taken less seriously by readers. See, e.g., LeBlanc v. Skinner, Seldon v. Compass Restaurant, Chaker v. Mateo, Sandals v. Google, DiMeo v. Max, Finkel v. Dauber, Bellavia Blatt v. Kel Partners, and Spencer v. Glover.

The opinion has an odd discussion about the hyperlink from the blog to Milazzo’s dental practice website. The opinion says that none of the blog posts explicitly mention the dental practice, so there’s no defamation. The opinion continues:

[the blog post contained] a parenthetical with a hyperlink to Milazzo’s dental practice (Anthony G. Milazzo, D.D.S.), which provided direct access to the alleged defamatory statements to anyone who searched the internet for Milazzo….We have no doubt that defendants, in fact, intended to harm Milazzo’s dental practice, as there appears to be no other purpose for inclusion of the hyperlink. But while the hyperlink may be mean-spirited and ill-advised, the five identified defamatory posts do not attack Milazzo’s profession as a dentist

A footnote adds: “The name “Anthony G. Milazzo, DDS” was hyperlinked to Milazzo’s profile listed on his dental practice’s website. Anyone searching for Milazzo on the internet will be directed to Connolly’s blog.”

It seems like the opinion is conflating different issues. The hyperlink’s anchor text is indexable by the search engines, a point that I make to my Internet Law course every time we discuss the old Promatek v. Equitrac case. However, the anchor text would be indexed whether or not there is a link. The court seems to imply that the presence of the outlink leads to more inbound search engine traffic from people searching for Milazzo, which is just wrong. Fortunately, because the court gets to the right result anyway, let’s call this no-harm/no-foul.

The IIED claim also fails:

Although defendants’ negative rants were certainly offensive, rude, annoying and, we assume, unwarranted, the nature of the criticisms against Milazzo was a far cry from being so unendurable to a reasonable person

If Illinois had a robust anti-SLAPP law (or better yet, if we had a federal anti-SLAPP law that applied here), the defendants probably would be getting their attorneys’ fees.

Case citation: Milazzo v. Connolly, 2017 IL App (1st) 162418-U (Ill. Ct. App. June 6, 2017)

The post “Offensive, Rude, Annoying, Mean-Spirited & Ill-Advised” Blog Posts Aren’t Defamatory–Milazzo v. Connolly appeared first on Technology & Marketing Law Blog.

* US v. Elonis, 2016 WL 6310803 (3d Cir. Oct. 28, 2016). Anthony Elonis’ conviction for criminal threats was once again upheld:

Considering the graphic nature of the three messages Elonis posted in October, it is not at all credible that Elonis did not know his ex-wife would interpret them as threats. But it is less credible still that, having attended the court proceeding at which she sought a restraining order against him, Elonis remained unaware of his ex-wife’s fears as he posted more violent messages on November 7 and 15. The evidence overwhelmingly shows that Elonis posted those two messages with either the purpose of threatening his ex-wife, or with knowledge that she would interpret the posts as threats….Elonis contends the fact that his statements were in lyric form suggests he did not know they would be regarded as threats. The evidence suggests otherwise.

Prior blog post.

* Inside Higher Ed: Students lose interest in Yik Yak, a relief for administrators

* State v. Hannah, 2016 WL 7368984 (N.J. Superior Ct. App. Div. Dec. 20, 2016): “We need not create a new test for social media postings. Defendant argues a tweet can be easily forged, but so can a letter or any other kind of writing. The simple fact that a tweet is created on the Internet does not set it apart from other writings. Accordingly, we apply our traditional rules of authentication under N.J.R.E. 901.”

* Compton v. State, No. 82A01–1511–CR–1997 (Ind. Ct. App. Aug. 24, 2016):

it is unnecessary to decide whether Twitter is “broadcasting,” because even assuming it is, broadcasting is not inherently prejudicial and Compton has shown no specific prejudice to him in this case. Similar to Willard, the evidence against Compton, including his inculpatory statements, is overwhelming; prior to trial, the trial court instructed the jury not to receive information about the case from any source, including internet sources; the jury was sequestered during the Twitter discussion; the trial court instructed the media not to Tweet in a manner that would disrupt proceedings; the trial court instructed the attorneys to notify their respective witnesses not to use Twitter until after they testified; and there is no evidence any witnesses or jurors viewed any Tweets pertaining to the trial. We conclude Compton was not deprived of due process when the media was allowed to Tweet live updates of his criminal trial from the courtroom.

In a footnote:

Despite our ultimate conclusion, we take this opportunity to express our concern as to the impact social media applications have on due process and trials. Social media applications, such as Twitter, allow users to disseminate information immediately from their portable devices, similar to live television and radio broadcasts. The use of Twitter has already created multiple issues surrounding whether such use may compromise a defendant’s due process rights….Despite these concerns, we decline to opine whether the use of Twitter should be permitted in the courtroom.

We note, however, the pretrial instructions in this case did not instruct the jury not to refrain from seeking information through social media applications. Rather, the instructions merely instructed the jurors not to receive information from the internet. Given how easily one may access the internet in this technological age, we fear such an instruction may not be specific enough to deter jurors from using Twitter now and in the future. In addition, we note when the ethics rules regarding “broadcasting” were written, social media was a vastly different medium than today. We believe judges and attorneys are in need of guidance on how they approach the use of social media during criminal trials. Therefore, given the rapidly evolving relationship between Twitter and our judicial system, we believe it is time for all appropriate judicial, attorney, and ethics committees to come together to specifically address these concerns.

* Schmalfeldt v. Johnson, 2016 WL 3659901 (E.D. Wi. July 1, 2016): “exercising personal jurisdiction over Palmer would be incongruous with due process. It is not enough that Palmer knew, or should have known, that her blog would cause injury in Wisconsin, and Schmalfeldt has alleged no other connection to or contact with Wisconsin.”

* Fusion: What happens when your tweet goes viral

* I was asked to contribute to the New York Times’ Room for Debate. This article prompted it: Millennials are getting prenups that protect their intellectual property. The call to action: “What’s behind this trend? Is it a good idea, or even enforceable? Should couples sign prenups for intellectual property and ideas?” My response got cut but here it is:

It makes sense for young couples to discuss allocation of their online content and other intangible assets early in their relationship. Millennials are spending a substantial fraction of their lives online. Along the way, they are creating or acquiring many digital assets that are important to them and may have substantial economic value—such as social media accounts with potentially thousands of followers, YouTube and Instagram accounts with lots of photos and videos, and even virtual items in online games that may have cost thousands of dollars or many hours of time.

In the old days, sometimes the fiercest fights in a divorce erupted over sentimental items like family photo albums. Now, divorcing couples are just as likely to fight over who gets the Instagram account or a Chromatic Sword in World of Warcraft. Because these online assets are often quite personal to their owners, and because ownership of the assets might implicate the person’s connections to their online communities and social networks, battles over the disposition of these assets have the potential to be especially emotional. It’s far better to anticipate and resolve those matters when everyone’s head is clear.

While discussing their online assets, couples might also consider the post-mortem disposition of their online presences, such as what will happen to email accounts and social media accounts after they die. There may be economic value to those accounts, but post-mortem access to those accounts also may raise subtle privacy issues. Account ownership can be addressed in the parties’ wills, but many online services now also provide online tools that specify what should happen to the account after death. Figuring out the proper settings can be tricky. On the one hand, online accounts may contain important financial information or sentimental memories that a surviving spouse will want or need. On the other hand, it’s possible that even loving and faithful spouses keep some secrets from each other, and those secrets may be unwittingly revealed if the surviving spouse accesses the account.

Harassment/Discrimination

* NPR: Social Network Nextdoor Moves To Block Racial Profiling Online. Nextdoor’s post. Coverage from Fusion and Wired.

* Buzzfeed: “A Honeypot For Assholes”: Inside Twitter’s 10-Year Failure To Stop Harassment

* Hannah v. Cowlishaw, 2016 WL 4995310 (E.D. OK Sept. 19, 2016): “Plaintiff has cited to no authority showing he has a clearly established constitutional right that would prevent a colleague who more than two years prior made a possibly racist comment on Facebook from voting on his tenure application.”

* Fisher v. Mermaid Manor Home for Adults, LLC, 2016 WL 3636021 (E.D.N.Y. June 29, 2016). An Instagram post comparing a co-worker to Cornelius from Planet of the Apes can create a hostile work environment.

* Keefe v. Adams, 2016 WL 6246869 (8th Cir. Oct. 26, 2016). A nursing student is terminated from a public school’s nursing program due to inappropriate Facebook posts, adding to the long list of social media problems in the nursing community.

E-Discovery

* Feist v. Paxfire, 2016 WL 4540830 (SDNY Aug. 29, 2016):

The Court is troubled by Feist’s assertion that she did not know her browsing history could be relevant to this litigation. Her allegations under the Wiretap Act involve the interception of her internet searches. She is not a novice at computer functioning, and reasonably should have known that evidence of her internet history, including her cookies, would be relevant to this action. Feist admitted running the cleaner program after commencing this action, knowing that it would delete her browsing history. It is reasonable that prior to filing this action, Feist had used cleaner software to clean up her computer. The use of virus scanners and hard drive cleaning programs is a common occurrence for computer users. It is not reasonable that Feist continued to use the software once this lawsuit began, and did not know that it could prejudice her adversary….

* Carlson v. Jerousek, 2016 IL App (2d) 151248 (Ill. Ct. App. Dec. 15, 2016)

Forensic imaging of all of the contents of Carlson’s computers will yield an enormous amount of data that goes far beyond the issues that are relevant to this suit, potentially including personal photographs, declarations of love, bank records and other financial information, records of online purchases, confidential information about family and friends contained in communications with them, and private online activities utterly unconnected to this suit. A request to search the forensic image of a computer is like asking to search the entire contents of a house merely because some items in the house might be relevant. Because such a search is not narrowly restricted to yield only relevant information, it poses a high risk of being overbroad and intrusive in a manner that violates the constitutional right to privacy.

* Law.com: Nothing Unusual in FBI’s Eight-Day Clinton Email Review: E-discovery Experts

Law Enforcement

* NY Daily News: Brooklyn prosecutor who allegedly forged wiretap orders had remote access to phone calls, source says

* California Governor Brown Signs Bill Protecting Californians from Civil Asset Forfeiture Abuse

* Reader: Inside the Chicago Police Department’s secret budget

Miscellaneous

* Sarah Jeong: From Tape Drives to Memory Orbs, the Data Formats of Star Wars Suck (Spoilers)

* Reuters: Get off my lawn! Pokemon Go tests global property laws

* Washington Post: Government lawyers don’t understand the Internet. That’s a problem.

* Cracked: a behind-the-scenes look at a Ukrainian essay-writing company

* Vox: Male film actors get jobs like “doctor” and “cop.” Women get “receptionist” and “party girl.”

* Cracked: The 6 Nerdiest Wikipedia Wars In Internet History

* Oddee: 10 Iconic Protest Photos

* Esquire: The Falling Man (about the 9/11 “jumpers”)

* The Atlantic: The Lost Civilization of Dial-Up Bulletin Board Systems

* Hollywood Reporter: Behind Hollywood’s Closed Doors, A-List Stars Are Playing Dungeons & Dragons. So are law professors!

The post 2H 2016 Quick Links, Part 11 (Social Media, Harassment, E-Discovery & More) appeared first on Technology & Marketing Law Blog.

This case is a defamation-plus lawsuit over two stories, one published on Above the Law and the other by the Gawker property Jezebel. The Jezebel story described plaintiff Meanith Huon as an “acquitted rapist” and discussed his lawsuit against Above the Law. Our blog post on the district court ruling. On appeal, the court rejects most of Huon’s defamation claims, but I’ll focus on the allegation that an “anonymous” (really, pseudonymous) comment to the Jezebel story, by user “vikkitikkitavi”, was defamatory. The comment at issue:

She jumped out of a moving car, leaving her shoes and purse behind and ran barefoot through a cornfield and pounded on a stranger’s door to help her?

Fuck this “he’s been acquitted” noise. He’s a rapist alright, so we may as well call him one.

To me, vikkitikkitavi’s comment sounds like his/her opinion, i.e., the user expresses how he/she interprets the facts instead of disseminating new facts. Plus, while the appellation “rapist” has a literal meaning in the criminal law context, it also has many metaphorical or hyperbolic meanings that the speaker could be invoking. The court sees it otherwise:

This comment unequivocally accuses Huon of committing a crime (rape), and nothing in its context suggests it is more appropriately viewed as mere name-calling or stylistic exaggeration.

Even if vikkitikkitavi is legally at risk, surely Section 230 protects Gawker/Jezebel from liability for the user comment…right? NOPE. The complaint alleged that a Gawker staffer might have written the comment, and the court says this allegation is enough to survive Gawker’s motion to dismiss. As a bonus, some of Huon’s other state law claims are revived along with it.

We’ve seen many lawsuits where the complaint alleged that a defamatory message board post or article comment was authored by the site operator’s staff and therefore a Section 230 motion to dismiss should fail. Courts routinely, but not always, reject these allegations. Why did Huon’s allegations work better than these prior cases? The court tries to explain:

Rather than asserting one or two standalone factual allegations concerning Gawker’s control over comments, Huon’s fourth amended complaint devotes over four pages to detailing Gawker’s alleged activities. Critically, the complaint hints at why Gawker employees might have anonymously authored comments, alleging that increasing the defamatory nature of comments can increase traffic to Gawker’s websites, which can in turn enhance the attractiveness of Gawker’s commenting system for prospective advertisers. In doing so, the complaint quotes several passages from a Reuters article that explains precisely how Gawker was planning to “monetize” comments, and why advertisers might find this commenting system appealing.

The Gawker Defendants may well be correct in contending that none of Huon’s various allegations actually occurred, but this doesn’t mean that the allegations are so implausible as to warrant dismissal under Rule 12(b)(6). See Twombly, 550 U.S. at 555 (explaining that a complaint need only plead enough facts to “raise a right to relief above a speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)” (footnote and citations omitted)); id. at 556 (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” (citation and internal quotation marks omitted)). Discovery is the proper tool for Huon to use to test the validity of his allegations, and if he is unable to marshal enough facts to support his claim the Gawker Defendants can move for summary judgment. Moreover, to the extent Gawker and other publishers are concerned that our ruling will result in a flood of frivolous lawsuits, we remind them that sanctions are available under Federal Rule of Civil Procedure 11 if it is determined that a plaintiff’s factual allegations were plead with improper purpose, are frivolous, or were known by plaintiff’s counsel to be lacking any factual basis.

How did such an obvious and easy Section 230 case go off the rails? I can think of at least three things:

* Some judges are so inclined to give plaintiffs their chance in court that they reject motions to dismiss when discovery possibly could reveal contrary facts, even when it’s clear from the complaint that the plaintiff will lose eventually. Sadly, Section 230 brings out this judicial impulse more than it should, and perhaps it influenced the Seventh Circuit here. Unfortunately, biasing towards plaintiffs at the motion-to-dismiss stage imposes real costs on defendants and society generally, and I’ve seen numerous judges undervalue these consequences.

* The judge expresses overconfidence that Rule 11 will adequately deter plaintiff overclaiming in complaints. I love Rule 11’s deterrence power in theory; too bad it’s not supported in practice. FWIW, I can’t recall a single Rule 11 sanction based on Section 230–can you?

* The appellate ruling’s biggest analytical defect: the court notes Huon’s allegations that Gawker employees authored “anonymous” comments, but the court did not cite any allegations that vikkitikkitavi’s specific comment was actually written by a Gawker staffer. To confirm this, I read through all 69 pages of Huon’s FOURTH amended complaint. The complaint references “vikkitikkitavi” only once (page 38). The “four pages” of discussions about Gawker’s comments appear to be on pages 32-36 of the complaint (paragraphs 111-122; also see 125). Read those pages to see if there’s anything more than innuendo that Gawker employees wrote comments generally; and nothing about vikkitikkitavi’s comment. I think it’s inadequate for the complaint to “hint” (the court’s words) at the possibility that some Jezebel comments may be written by staffers; that kind of speculation about who authored vikkitikkitavi’s comment–the only comment still at issue–is exactly what Twombly says isn’t allowed. (Plus, the complaint’s allegations about Gawker’s purported encouragement of staffer-authored comments struck me as limp. What did you think?). Given the disconnect between the allegations and the allegedly defamatory post, I think this ruling was intentionally hostile to Section 230 by letting a (low?) probabilistic allegation about comment authorship to overcome a Section 230 motion to dismiss.

The net effect: it’s apparently now open season on message board posts and story comments in the Seventh Circuit. Plaintiffs can drop hints and innuendo that the site operator wrote aonymous/pseudonymous comments and, if this opinion is followed, should advance to summary judgment. And if you think Rule 11 will slow that down, you’re living in a fantasy world.

Case citation: Huon v. Denton, 2016 WL 6682931 (7th Cir. Nov. 14, 2016). Huon’s Fourth Amended Complaint.

The post Now the Seventh Circuit Is Shitting On Section 230–Huon v. Denton appeared first on Technology & Marketing Law Blog.

Yelp has appealed the case to the California Supreme Court, which has the discretion to hear the case. In support of Yelp’s request, amici submitted 14 letters representing over 40 organizations and over a dozen law professors. Basically, the entire Internet community has rallied around Yelp on this matter–including key players such Google, Facebook, Wikimedia, Twitter (and many others and numerous public interest groups. The volume and gravitas of the letters, plus the obvious and stupid mistakes in the appellate court opinion, should give Yelp’s request a good chance of being granted. The California Supreme Court will announce its decision in the next week or two.
___

The parties’ filings:

* Yelp’s Petition for Review. Authored by Thomas Burke and Rochelle Wilcox of Davis Wright Tremaine. The petition presents two questions: (1) can Yelp be bound by an injunction from the lawsuit against the review author when Yelp wasn’t a party to that suit and didn’t get notice or an opportunity to be heard?, and (2) Can a court require a web publisher to remove user content despite Section 230?

* Hassell’s Response, authored by Monique Olivier and J. Erik Heath of Duckworth Peters, and Yelp’s Reply. Hassell’s response says “there are no important questions for this court to resolve” regarding due process (really?), “this case raises no First Amendment issues for review” (REALLY?), and the appeals court made a “straightforward application” of Section 230 (just no). Hassell’s response stresses its trial court default judgment “win”: “Yelp continually glosses over the dispositive fact demonstrating why review is unnecessary: this case arises in the rare context where a party has a court judgment finding the statements in issue to be defamatory.” This leads to a sanctimonious proclamation:

Decades of constitutional jurisprudence confirm that defamatory speech does not enjoy First Amendment protection. What public policies promote Yelp’s intransigence in refusing to remove adjudged defamatory content from its website, particularly where its own terms of service state it will do so? It is hard to envision how “consumers will suffer” from an inability to access defamatory content, and Yelp simply cannot articulate any public policies, let alone principles of law, that are advanced by continued distribution of adjudged defamatory statements because there is none. While Yelp wants to frame this case as implicating important constitutional protections, that framing falls apart when the actual, narrow record is considered: three adjudged defamatory postings that Yelp was ordered to remove.

Yelp’s reply points out “Yelp was not a party to the action that found the speech to be defamatory after an uncontested hearing. The lower court gave Yelp no opportunity to litigate the question of whether the speech is defamatory, and thus its resulting decision is not binding on Yelp….Under [the plaintiff’s] reasoning, any judicial finding that speech is defamatory—even one entered following questionable service (A00026) and an uncontested default hearing (A00211)—would bind third parties, although they had no ability to oppose that finding. Plaintiffs could get uncontested judgments around the country and use them to deny California citizens their own First Amendment rights––all because a court somewhere entered a default judgment finding the speech to be defamatory.”

Separately, Hassell’s response says: “Yelp fails to explain how requiring an internet service provider to comply with a specific court order about a user’s liability for defamation could chill any speech or impose any undue burden that could affect the robust expression of ideas on the internet.” Yelp replies: “Plaintiffs’ argument—that only those who create speech have a First Amendment right in that speech—is simply wrong.”

The parties also debate the possibility that plaintiffs may abuse default judgments to scrub online content. Hassell’s response says: “Nor are there any grounds to assume that countless internet users will use this case as a vehicle to procure fraudulent judgments (after prove-up or other contested hearings) simply to remove unsavory content from websites.”

I agree we don’t need to make any assumptions about the potential abuse of default judgments. We have *substantial proof* that plaintiffs are indeed abusing default judgments. A few examples:

* Techdirt: Bogus Defamation Suits From Bogus Companies Against Bogus Defendants
* Paul Levy: Georgia Dentist Mitul Patel Takes Phony Litigation Scheme to New Extremes Trying to Suppress Criticism
* Cindy Cohn/EFF: One injunction to censor them all: Doe injunctions threaten speech online

Plus, several of the amicus letters (highlighted below) mention potential or actual abuse of default judgments, including Glassdoor, Google and Xcentric/Ripoff Report. As Yelp’s reply says, “the appellate decision has found its way into threats by plaintiffs across the country (and even outside our borders), who are eager to evade Section 230 and take action directly against website providers like Yelp.”

Finally, Hassell’s response makes this intriguing assertion: “Plaintiffs’ research has revealed that only in extremely rare cases do websites or internet service providers refuse to remove content that a court had already found unlawful.” The response doesn’t provide any more detail or a citation. I emailed the plaintiff’s counsel about this assertion but didn’t get a response. I would like to see the backup because it doesn’t jive with my understanding. Because of increasing abuses of default court judgments, I think intermediaries are increasingly scrutinizing court orders more closely rather than automatically complying with them.
__

The amicus letters filed with the California Supreme Court, with some selected highlights. As you’ll see, many Internet Law all-stars are now involved in this case.

* ACLU/EFF/Public Participation Project Letter. Authored by Michael Risher of ACLU.

[UPDATE:] * Airbnb Letter. Authored by Jonathan Blavin of Munger Tolles.

* Automattic/Pinterest/Reddit Letter. Authored by Jim Snell of Perkins Coie. “In instances where those who disagree with statements online attempt to silence speakers by filing lawsuits, the speakers often do not have the resources to contest defamation claims. Thus, to protect the free speech rights of users, service providers often require that procedural and substantive safeguards to free speech be met before removing content. This practice ensures that complained-of content is actually found unlawful before it is removed, and minimizes the chilling effect on speech that would occur if providers were simply to remove all the content that anyone found objectionable. It is also consistent with the exercise of service providers’ own First Amendment rights to distribute and curate content, and to cultivate the editorial policies that best serve their sites and their communities.”

* Avvo Letter. Authored by Josh King. Calling Section 230 “the law that makes the Internet go.”

* Computer & Communications Industry Association Letter. Authored by Matt Schruers and Ali Sternburg.

* Facebook/Microsoft/Twitter Letter. Authored by Mark Flanagan, Patrick Carome and Ari Holtzblatt of Wilmer Hale.

* GitHub Letter. Authored by Cathy Gellis.

* Glassdoor Letter. Authored by Brad Serwin.

In the past year alone, Glassdoor has received approximately 260 legal demand letters to remove reviews and/or turn over our users’ identities. During this time, our users have been the subject of nearly 50 court cases brought by employers across 14 states. As of June (i.e., when the opinion in Hassell was issued), there were some 14 active legal cases directed at approximately 83 Glassdoor anonymous users in six states. In almost all of these cases, the reviews in question reflect opinions of current or former employees.

Since Hassell was published, we have begun receiving demand letters citing the opinion as grounds for demanding that Glassdoor remove content and reviews deemed objectionable. We are deeply concerned that unscrupulous employers unhappy with honest, negative employee opinions about them in Glassdoor reviews will take guidance from Hassell and seek to gain default judgments and then use the threat of contempt proceedings to force us to remove content in violation of First Amendment rights and Section 230 immunity. Indeed, we observe with deep apprehension the recent appearance of online legal commentaries pointing to Hassell as a road map for using default judgments as a means of attacking and forcing the removal of online reviews not to one’s liking. See “How to Take Down Bad Reviews On Yelp and Win a $500,000 Judgment- Hint: Don’t Sue Yelp.”

* Google Letter. Authored by David Kramer, Brian Witten and Jason Mollick of Wilson Sonsini. “Google routinely receives ex parte court orders like the one issued in this case….Google challenges these orders (which often arise from default judgments) by invoking Section 230 and bedrock principles of due process….The decision is already been used to try to expand the law in dangerous ways. For example, plaintiffs in a pending case in Canada involving Google have cited the decision to try to justify an unprecedented blocking order that would require Google to remove certain search results websites across the entire world.”

* Internet Law Scholars Letter. Authored by Prof. Eugene Volokh of UCLA. I joined this letter.

* Public Citizen Letter. Authored by Paul Levy.

* R Street Letter. Authored by Steven Greenhut and Cameron Smith.

* Reporters Committee for Freedom of the Press Letter, on behalf of itself and 30 other organizations. Authored by Katie Townsend, Bruce Brown, Gregg Leslie and Michael Lambert. Supporting organizations include Los Angeles Times Communications LLC, The New York Times Company, American Society of News Editors, AOL Inc. – The Huffington Post, Association of Alternative Newsmedia, Association of American Publishers, Inc., BuzzFeed, California Newspaper Publishers Association, Californians Aware, The Center for Investigative Reporting, First Amendment Coalition, First Look Media Works, Inc., Fox News Network LLC, Freedom of the Press Foundation, Gannett Co., Inc., International Documentary Assn., Investigative Reporting Workshop at American University, The McClatchy Company, The Media Institute, Media Law Resource Center, MPA – The Association of Magazine Media, National Press Photographers Association, The News Guild – CWA, Newspaper Association of America, Radio Television Digital News Association, and Tully Center for Free Speech.

* Wikimedia Letter. Authored by Michelle Paulson.

* Xcentric Ventures (Ripoff Report) Letter. Authored by David Gingras. “Ripoff Report does not remove reports in response to court orders/injunctions. The goal of this policy is simple—by refusing to remove reports, Ripoff Report creates a permanent record of disputes so the public can view a complete history of complaints, including information showing how the dispute was resolved. This policy furthers the important public purpose of giving consumers the ‘whole picture’ including both truthful complaints and discredited ones.”

The Ripoff Report letter also contains a provocative argument that the Yelp posts referenced in Hassell’s complaint were expressly or implicitly incorporated into her complaint, which became a litigation record, and there is a privilege allowing litigation records to be republished freely. I doubt courts will interpret the law to achieve that outcome because it would mean every plaintiff effectively must acquiesce to the permanent unrestricted republication of the materials they are seeking to redress.

In a footnote, the letter adds “in the short time since Hassell was decided, Xcentric (which is based in Arizona) has received numerous demands from California attorneys citing Hassell and demanding removal of content on that basis.”

Case library:

* Hassell’s answering brief. Yelp’s reply brief.
* Yelp’s Opening Brief to the California Supreme Court and Request for Judicial Notice
*Yelp’s Petition for Review, Hassell’s Response, and Yelp’s Reply. Amicus letters from ACLU/EFF/Public Participation Project, Automattic/Pinterest/Reddit, Avvo, Computer & Communications Industry Association, Facebook/Microsoft/Twitter, GitHub, Glassdoor, Google, Internet Law Scholars, Public Citizen, R Street, Reporters Committee for Freedom of the Press (and 30 other organizations), Wikimedia, and Xcentric Ventures (Ripoff Report).
* Appellate Court Opinion. My blog post about it.
* Yelp’s Appeals Court Brief. Hassell’s Response Brief. Yelp’s Reply.

The post The Internet Rallies Against A Terrible Section 230 Ruling–Hassell v. Bird appeared first on Technology & Marketing Law Blog.

* Skidmore v. Led Zeppelin, No. CV 15-03462-RGK (AGRx) (C.D. Cal. June 23, 2016): Led Zeppelin’s Stairway to Heaven isn’t substantially similar to Spirit’s Taurus. The plaintiff’s lawyer explains why it was a loss for both sides. My Q: why are we litigating a copyright case over a song released 45 years ago? We need an effective statute of limitations for copyright law.

* Photo Attorney: “As reported in the recent White Paper on Remixes, First Sale, and Statutory Damages issued by the Department of Commerce Internet Policy Task Force (Jan. 2016), only two courts in four decades have reduced the statutory damages to $200 for innocent infringement (see pp. 83-84 and footnote 504).” We need to rethink how we formulate the range for statutory damages; clearly the low end isn’t working very well as an outlet for “not so bad” infringement.

* Techdirt: A Dozen Bad Ideas That Were Raised At The Copyright Office’s DMCA Roundtables. This doesn’t even include the noxious proposal from the Copyright Office to require agent designation renewals or forfeit the safe harbor.

* ABS Entertainment v. CBS Corp. (C.D. Cal. May 30, 2016): “Plaintiffs’ pre-1972 Sound Recordings have undergone sufficient changes during the remastering process to qualify for federal copyright protection.” This one has to be reversed or else it’s a seismic ruling that will unleash countless new plaintiffs.

* “Google Books is legal. Full stop.” Super retrospective of 10 years of Google Books litigation by James Grimmelmann.

* Techdirt: John McCain, Forgetting His Own Support Of Fair Use On YouTube, Tries To Use Copyright To Take Down His Own Ad

* OpenMedia: What the heck is ancillary copyright and why do we call it the Link Tax?

* The Music Industry Buried More Than 150 Startups. Now They Are Left To Dance With The Giants.

* ABA Journal: Two reluctant entrepreneurs tackle challenge of copyright duration

Trademarks

* Zerorez Franchising System, Inc. v. Distinctive Cleaning, Inc., 2016 WL 2637801 (D. Minn. May 6, 2016):

Plaintiffs claim that between June 1, 2012 through June 30, 2014, they spent $82,062.34 on internet-based corrective advertising through Google AdWords. The online advertisement Plaintiffs claim was corrective states “Official ZEROREZ® Website” with the description “Patented Empowered Water” and “For Clean You Can Trust.”

Plaintiffs are not entitled to recover the full $82,062.34. The only mildly corrective element of the advertisement is the phrase “Official ZEROREZ® Website.” The Court finds that Plaintiffs are entitled to recover ten percent of their requested amount, or $8,206, for online corrective advertising. Ten percent is fair given the limited advertising space available in this medium; a larger message that explicitly referenced Distinctive’s infringement would likely be unwieldly. Moreover, the record includes a screenshot showing the Zerorez advertisement positioned directly above a Distinctive advertisement that states “Zero Rez Carpet Cleaning.” In this context, claiming to be “official” is marginally corrective and serves to remedy potential customer confusion. For these reasons, Plaintiffs are entitled to a limited portion of its internet advertising expenditures.

In a footnote, the court added:

Defendants claim that because other carpet cleaning companies used Google AdWords campaigns with the Plaintiffs’ trademark, the causal connection for recovering corrective advertising is further eroded. This argument misses the mark. As explained in the May 5th Order, Defendants’ infringement is founded on Distinctive’s use of Plaintiffs’ trademark in the text of its advertisements, which is viewable to potential customers. The words and phrases used in Google AdWords campaigns are not viewable to potential customers and merely act to display specific advertisements when that word or phrase is used as a search term. Because of the low likelihood of confusion resulting from merely employing trademarked phrases in a non-customer facing environment, such behavior does not constitute trademark infringement. See, e.g., 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229 (10th Cir. 2013).

* Nespresso USA, Inc. v. Africa America Coffee Trading Co. LLC, 2016 WL 3162118 (SDNY June 2, 2016). In a default judgment ruling:

in its briefing Nespresso cites the theory of “initial interest confusion,” as articulated by the Ninth Circuit, in support of its claim that Libretto’s use of the Nespresso mark in its metatags is likely to create confusion. See Brookfield Commc’ns, Inc. v. West Coast Entm’t Corp., 174 F.3d 1036 (9th Cir. 1999). In Brookfield, the Ninth Circuit held that the use of metatags in source code could constitute a violation of the Lanham Act where such use might lead consumers from the trademark holder’s website to the website of a competitor. See generally id. This initial confusion, in turn, might cause the consumer to remain on the competitor’s website and utilize the competitor’s goods or services instead of returning to the initially-sought mark holder’s website. The Second Circuit has acknowledged and adopted the initial interest confusion doctrine, requiring a demonstration of a defendant’s intent to confuse to prove liability. Savin Corp. 391 F.3d at 462 n.13 (noting that consumers diverted on the internet can more easily go back, which minimizes harm). Based on the entirety of the circumstances before it, which include both Libretto’s prominent use of the Nespresso mark on its packaging and website, as well as in its metatags, the Court can infer that Libretto intended to create consumer confusion with respect to Nespresso’s sponsorship or endorsement of its goods. Nespresso has therefore also demonstrated false designation of origin on a theory of initial interest confusion liability based on Libretto’s use of the Nespresso mark in its website metatags.

Initial interest confusion sucks.

* CFE Racing Products, Inc. v. BMF Wheels, Inc., 2016 WL 1637560 (E.D. Mich. April 26, 2016)

The plaintiff contends that, at least since November 16, 2015, the defendants have run ads appearing in Google searches for “BMF Wheels” that state “BMF Wheels is Now SOTA — sotaoffroad.com.” Remarkably, the defendants admit that they have published the Google ads, but maintain that this is not “trademark use,” and merely constitutes publication of a “statement of fact” advising customers that the company has changed to a new brand….In this case, the defendant’s use of “BMF Wheels” in their Google ads clearly is intended to identify SOTA Offroad as the source of goods formerly sold under the prohibited brand. In all events, whether this constitutes “use” of the mark or not, the continued — and apparently new and renewed — publication of advertising including the mark “BMF Wheels” plainly defies the injunctive command to “forthwith… withdraw all advertising in all media that bears the infringing marks or logos.”

* Hart v. Amazon.com, Inc., 2016 WL 3360639 (N.D. Ill. June 13, 2016). The plaintiff alleged Amazon’s vendors resold counterfeit versions of his books. The court rejects the trademark claims, saying that Amazon qualifies for the First Sale defense because the plaintiff didn’t make enough showing that the books were counterfeit. (Cf. the Tre Milano v. Amazon case). The court also rejected a false endorsement claim, saying “a shopper at a bookstore does not automatically believe that just because a used book is appearing at the store, the author is expressly endorsing that store. The same is true for a book that is resold on Amazon.”

Patents

* William Hubbard, Razing the Patent Bar. Why do we require technical expertise to sit for the Patent bar exam and become licensed to prosecute patents before the USPTO? This article questions the logic:

It does not appear that the USPTO has ever articulated a detailed economic justification for the technical education requirement….

market failures regarding technical qualifications played no role in the legal origins of the Patent Bar…

[In 1934:] Lawyers, however, were automatically eligible to take the exam. As a result, for many years lawyers without technical degrees joined the Patent Bar, and by 1960, 22% of the members of the Patent Bar were lawyers without technical degrees….

the correlation between patent practitioner quality and the technical education requirement is relatively weak…once a person becomes a patent agent or attorney, she is not limited to working on matters related to the technical credentials that allowed her to join…many members of the Patent Bar ultimately work on matters that are minimally related to the members’ technical backgrounds.

One consequence of the PTO’s unnecessary requirement is that we’re going to face a shortage of patent prosecutors, which will impede the prosecution of new patents and increase prosecution costs:

2014 saw the smallest number of new admissions to the Patent Bar in a decade, with less than 1,200 people taking and passing the Patent Bar exam. In contrast to the slow growth in the Patent Bar, the number of patent applications filed each year has steadily increased, so that today the USPTO receives 47% more applications than it did a decade ago

* Vice Motherboard: The Small Town Judge Who Sees a Quarter of the Nation’s Patent Cases

Trade Secrets and Employee Mobility

* During the debates about the Defend Trade Secrets Act, the theft of Kevlar by South Korean actors was the ONLY example that supporters could marshal to show why we needed an ex parte seizure provision. But this article by the American Lawyer demonstrates that Kevlar would never have qualified for the ex parte seizure provisions.

* White House report: Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses. Related post.

Publicity Rights

* AP: ‘El Chapo’ Wants Payment From U.S. TV Networks

The post Q2 2016 Quick Links, Part 1 (Intellectual Property) appeared first on Technology & Marketing Law Blog.