Emojico started with the standard SAD Scheme argument that all of the defendants are counterfeiters, which necessarily proves they are infringers, res ipsa loquitor. The court doesn’t accept this simplistic syllogism:

Plaintiff has failed to show that the marks used by Defendants are similar; indeed, many of the marks are so dissimilar that the Court lacks the confidence required for the extraordinary remedy of a temporary restraining order that a factfinder would find in Plaintiff’s favor…

the goods appear to be far from identical. For example, Defendant 2 sells a shower curtain with a lifelike image of man screaming. It is difficult to imagine how any consumer would be confused that the source of this product is Plaintiff, whose products use highly stylized, cartoon-like images of disembodied smiley faces.

I would show you the shower curtain image that unimpressed the court, but it remains sealed. Not only that, but the court grants Emojico’s sealing request: “While the Court denies the motion for a temporary restraining order, the Court understands that public disclosure of the information filed under seal would, at this time, ’cause significant competitive harm’ to Plaintiff.” Ahem…more clarity please. Who are Emojico’s competitors, and how would they be helped by unsealing? In the interim, the rest of us can’t see or evaluate the basis of the court’s determination about mark dissimilarity.

In addition to the shower curtain example, the court enumerates other examples of defendants who probably aren’t infringing either (all from the still-sealed exhibit):

Defendant 4, selling a bathmat featuring illustrated jack-o-lanterns and smiling ghosts; Defendant 7, selling an abstract “glitch art poster” with no discernable faces whatsoever; Defendant 10, selling a pair of purple earbuds; Defendant 11, selling a digital alarm clock and nightlight roughly resembling a robot; Defendant 14, selling an alarm clock stylized as a television with antenna; Defendant 15, selling a shower curtain featuring an lifelike illustrated wolf; Defendant 17, selling a karaoke machine with cat ears; Defendant 18, selling a cinema light box with removable letters and symbols; and Defendant 19, selling an LED pixelated table lamp

Emojico’s trademark registrations cover a mind-boggling range of product classes, from ship hulls to penis enlargers, so it tracks that they think they could simultaneously be the source of shower curtains, earbuds, and karaoke machines with cat ears.

Emojico tried to salvage its case by invoking state trademark law, but it didn’t actually provide any independent support for the state law claim. I am not aware of a SAD Scheme case where state IP rights have been the only basis of a successful enforcement. If you’ve seen one of those, let me know.

The court notes that maybe some defendants are actually infringers, but it questions joinder: “Plaintiff has not convinced the Court that there are common issues of fact among all Defendants.” The court isn’t willing to sever those defendants either.

The court also chastizes Emojico’s prolixity: “Plaintiff’s memorandum of law in support of its motion for temporary restraining order exceed the Court’s page limits by 33 pages, and the Court is unlikely to grant such a motion in the future if requests are similarly unreasonable.”

As usual, GIFs like this come to mind when a plaintiff loses an unopposed motion this badly:

Then again, I hope the TRO denial is only the first of many adverse consequences that Emojico suffers for bringing this lawsuit.

Case Citation: emoji company GmbH v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A, 2026 WL 1865118 (S.D.N.Y. June 29, 2026)

The post Court Rebuffs Emojico’s SAD Scheme TRO Request appeared first on Technology & Marketing Law Blog.

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

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

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

Publisher/Speaker Treatment

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

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

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

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

IP Exception to Section 230

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

How Might the Take It Down Act Apply?

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

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

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

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

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

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

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

Selected Prior Posts Relating to Cloudflare/CDNs

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

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

After that, Halmaghi kicked them out of the private Facebook group she administered called “Island Lake of Novi Residents.” The plaintiffs allege several connections between the Island Lake of Novi HOA and the private group, including that the HOA posts official notices there, which the plaintiffs couldn’t access.

The plaintiffs sued the HOA and other defendants. The plaintiffs claimed Fair Housing Act and other anti-discrimination violations. The claims against the HOA fail mostly due to the pleadings’ lack of specificity about the HOA/private group linkages.

As a result, this case becomes a fairly routine lawsuit over online account termination–except at the private group level rather than the server level. Non-governmental group administrators can exclude anyone they want from their groups, just as dozen of cases have established that services can terminate users’ accounts.

For example, the court says the exclusion from the group isn’t sufficiently extreme or outrageous to constitute IIED:

if a physical chase while yelling in the workplace and defamation are not sufficiently outrageous to set forth an IIED claim, then it is a stretch to imagine that exclusion from a Facebook group would qualify under this high bar.

Case dismissed against the HOA.

[Note: Although I support the legal freedom of online group administrators to decide group membership, including account termination as capricious retaliation for a negative online review, I also note the possibility that the plaintiffs’ exclusion was in fact motivated by racism or national origin discrimination, which would not be very neighborly at all. If so, it would be especially troubling to see in a metropolitan like Detroit, which has a very long and sordid history of racism in real property matters].

This case fits into several blog themes:

• The interplay between Internet Law and real estate law. The compare/contrast of real property and virtual property is a cyberlaw classic.
• HOAs are microcosms of community governance and enforcement, for better and for worse. Some other HOA/Internet Law blog posts (1, 2).
• Private Facebook groups are an important part of society but they don’t always get the attention they deserve. Some prior posts about private Facebook groups: 1, 2, 3, 4.

Case Citation: Khan v. Island Lake of Novi Community Association, 2026 WL 1833497 (E.D. Mich. June 25, 2026)

The post Private Facebook Group Can Exclude Member–Khan v. ILONCA appeared first on Technology & Marketing Law Blog.

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

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

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

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

Huckabee alleged the following aspects of Facebook’s scienter:

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

* * *

The case involves a photo called the “Parker Train Photo.” It was taken in 1962, but it was first published in a book in 2000. The plaintiff claims it licenses the photo for fine art reproductions for up to $5k each.

Messiah ran a blog initially entitled “Ask Fashion Kitty.” In 2009, she wrote a post entitled “Style Suggestions for Army Wives” about what a wife should wear when greeting her husband who is returning from an 8 month military tour in Afghanistan. Messiah found the Parker Train Photo in a Google image search and used it to illustrate her post:

In 2011, Messiah transferred the blog (including the post) to a new website, LaurenMessiah.com. Here’s how the post looked post-transfer. The opinion doesn’t mention how much traffic that post got, but given its age, I imagine traffic to the post within the statute of limitations was de minimis.

The plaintiff discovered Messiah’s post/photo in 2025 and sent a C&D. The court describes what happened next:

Defendants’ assistant dismissed the cease-and-desist as spam, deleted it, and did not forward it to Messiah. Defendants’ authenticated Slack communications confirm that Messiah described the copyright claim as “some stupid like copyright infringement thing for an old blog post.”

Messiah had the blog post deleted, but the image remained online at its (presumably highly obscure) direct URL (this eventually got deleted too). In 2025, the plaintiff sued for copyright infringement and 1202 violations.

Remarkably, the opinion doesn’t mention the statute of limitations at all, even though the original post had been published no less than 14 years earlier (I’m crediting the 2011 blog transfer as a possible republication). This silence reflects that the statute of limitations doesn’t functionally exist in online copyright law any more. Each new view/download nominally constitutes a new infringement, in which case the SOL resets to the most recent visit to the post.

Nevertheless, on summary judgment, the court dismisses the copyright infringement claim on fair use grounds:

Nature of Use. The blog post is transformative because “the Parker Train Photo is part of a broader work as published in the blog and accompanies fashion guidance, rather than being part of an anthology of the Photographer’s work.” Later, the court acknowledges that “the question-and-answer commentary does not appear to substantively reference the Photo at all,” but the text’s lack of substantive engagement with the photo doesn’t seem to affect the court’s transformativeness determination. This is a defense-favorable approach. I think other courts would reject transformativeness when the photo is used purely for its illustrative effect without any commentary.

Although Messiah’s website had a commercial purpose, “There is no evidence in the record of any revenue or commercial benefit earned from the blog or, more specifically, the Parker Train Photo blog post.”

Nature of Work. “the Parker Train Photo is a fashion photograph. Generally, photos are viewed as creative expressions.”

Amount Taken. “the question-and-answer commentary renders the Parker Train Photo insubstantial in context.” This is a highly defense-favorable conclusion because 100% of the photo was used.

Market Effect. “Plaintiff’s market, by its own admission, is fine art, whereas Defendants’ blog post served a different market function.” This is also a highly defense-favorable conclusion. The plaintiff did have a licensing program for the photo.

I interpreted the opinion’s defense-favorable twists to the court’s motivation to dismiss this case. Either the court was unmoved by the low-stakes nature of the alleged infringement (photographers should stop suing bloggers for copyright infringement!), or fair use was a backdoor way for the court to accommodate the lack of a statute of limitations.

1202.

there is a dearth of evidence on the record that Messiah knowingly failed to credit the Photographer when she posted the Parker Train Photo on her blog, or that she did so with the intent to induce, enable, facilitate, or conceal infringement. Messiah merely found the Photo on Google Images by searching “army fashion,” saving the file on her computer without altering the Photo or the filename, and then publishing the Photo on her blog. She testified that at that time, she looked for a watermark, could not find one, and had no knowledge of the Photographer. She also testified that the filename, “Melvin-Sokolsky5.jpg,” was provided by the source website and she did not know it referenced the Photographer.

The plaintiff pointed out that Messiah had occasionally credited other photographers in other posts. The court responds: “Plaintiff does not point to any case law to suggest that Defendants providing credit to some photos while missing credit for others indicates a pattern of deliberate conduct.”

* * *

Last month, I blogged about another case where a blogger illustrated their post with a third-party photo, and that did not qualify for fair use. I’m not sure how to reconcile the two cases, though the time delays in this case make it seem less sympathetic.

In my prior blog post, I made the following observations that mostly apply here as well:

• “Verbatim republishing of a third-party photo is inherently risky, even for bloggers.”
• “I was struck by the fact that the blog post had 43 views. With such low stakes, how did this case make it to federal court and reach summary judgment???”
• “why isn’t this case in the CCB, which seems like it was tailor-made for low-value cases like this?”
• “the photographer’s actual damages should be near-zero… I don’t see how the photographer is going to get any real payoff here”
• “All of this makes it a bummer for everyone–plaintiff, defendant, and society–that the parties couldn’t settle this case pre-filing.”
• “other than ignorance of copyright law, why would a blogger cut-and-paste a copyright photo from the Internet when a non-infringing substitute is just a few extra clicks away? A lawsuit like this heightens the demand for Generative AI replacements.” This advice doesn’t work here because the copying is so old that we were still at war with Afghanistan and Generative AI wasn’t widespread.

Case Citation: Sokolskyfilm, Inc. v. Lauren Messiah Inc., 2026 WL 1772787 (C.D. Cal. June 16, 2026)

The post Blogger Defeats Photographer’s Copyright Claim–Sokolskyfilm v. Messiah appeared first on Technology & Marketing Law Blog.

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

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

The March Bouck Ruling

Section 230

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

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

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

The court says Carafano doesn’t help Facebook because:

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

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

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

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

Aiding and Abetting Fraud

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

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

Contract Breach

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

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

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

Negligence

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

Unruh Act

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

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

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

The March Suddeth Ruling

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

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

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

The judge distinguishes his own simultaneous ruling in Bouck:

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

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

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

The June Bouck Ruling

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

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

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

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

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

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

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

Created by ChatGPT Jan. 2026

Censorship efforts tend to come in fads. Censors get fired up about a new censorship theory and try it out, but the experiment tends to not satisfy them (either because it’s struck down or doesn’t scratch their censorship itch enough) and they move onto the next censorship fad. Rinse and repeat.

Around 2020, a censorship fad was to impose common carriage obligations to restrict the editorial decision-making of Internet publishers. This fad triggered a lot of pointless conversations about 19th century technologies, such as railroads. The legal underpinnings of the fad were always obviously mockable, and most censors have already moved onto to newer censorship theories.

We’re still dealing with the detritus of the 2020ish common carriage fetishization. As one example, Ohio AG Yost sued Google claiming that Google search was a common carrier. This was always a stupid partisan lawsuit-stunt. Yet, even in the MAGA nirvana of Ohio, the lawsuit got no traction in court. Today, the Ohio appeals court unhesitatingly rejected the common carriage argument.

The court starts by observing that the legislature hasn’t spoken on this topic: “The General Assembly has not extended common carrier or public utility obligations to search engines or similar application-layer services.” Instead, the court says, there’s no carrying and no commoning taking place here.

There is No Carrying

“Google does not transport the unaltered property of others. It affirmatively creates a new expressive product, the SRP, through discretionary crawling, indexing, ranking, filtering, and formatting. This is curation and synthesis, not carriage.”

The court distinguishes search engines from telephones:

The State’s analogy to telephone service breaks down when one examines the actual flow of data. A user sends a query to Google; that query is a simple request consisting of the user’s own words or terms. Even assuming arguendo that Google has some common law duty to transmit the incoming query fairly and unaltered, the State’s complaint centers on the return leg – the SRP Google delivers back to the user.

That return data is not the user’s property, nor is it third-party content transmitted unaltered. Google receives the query, consults its own proprietary indices, applies its own ranking algorithms, makes relevance and quality judgments, filters results, and assembles a new, curated response that did not previously exist in that form. The SRP is Google’s own expressive product, not the user’s or any third party’s property being carried back unaltered. Traditional common carriers do not create the cargo they transport; they accept the shipper’s or speaker’s existing goods or message and deliver them substantially as received. Google does neither on the return leg.

There is No Commoning

The “common” part refers to the nondiscrimination obligations. The court is like, what are we even talking about…?

Even assuming for the sake of argument that Google’s Terms of Service would not, by themselves, justify refusing certain user inputs (queries), the Attorney General’s concern lies primarily with outputs – the ranking, presentation, and curation of search results.

At this point the common carrier doctrine encounters a fundamental mismatch. Traditional common carrier regulation centers on the relationship between price and service. Courts and regulators assess whether rates are just and reasonable. Google, however, provides its core search service to users at no direct charge. Its revenue comes overwhelmingly from advertising, not from the users whose results the State seeks to regulate. There is no traditional “rate” for the court to review or adjust. Scholarship in this area often concludes classic common carrier rate regulation is poorly suited to two-sided, zero-price-to-user, innovation-driven markets; any nondiscrimination obligation imposed here would necessarily target the content and ordering of outputs rather than prices, raising a distinct and more constitutionally sensitive set of issues.

Thus, even if one were to accept the State’s position that Google qualifies as a common carrier, fashioning an appropriate remedy would take this Court far outside the traditional judicial role in common carrier cases. The common law of common carriers does not supply a ready template for regulating the editorial output of a free service whose business model does not depend on user payments.

But Google is Big!

The court says: “There is no question that Google Search exerts enormous influence over the flow of information [but] it does not dispense with the common carrier doctrine’s two core requirements for judicial intervention.”

The court then extensively chastizes AG Yost for trying to legislate through litigation and reminds him of the proper role of judges. For example, it says “This Court will not accomplish by judicial fiat what the legislature has not chosen to do.” The court adds some mild benchslaps like:

It appears that the Attorney General singled out Google because of its monopoly-like status in this field. But ubiquity and market share do not justify novel judicial intervention here.

Federal preemption

“treating search engines as common carriers under state law would raise serious questions of conflict with federal communications policy.”

First Amendment

“The undisputed facts and the State’s legal arguments make clear that the core concern underlying this litigation is the regulation of Google’s editorial judgments in curating, ranking, and presenting information. This is, at bottom, an attempt to regulate speech.”

The court should have stopped talking there, but it didn’t:

We do not discount the legitimate policy concerns that animate the State’s position. Google’s dominant market position gives it outsized influence over the modern public square. Congressional investigations and disclosures regarding government-platform communications have raised serious questions about content moderation practices, viewpoint discrimination, and the influence of dominant technology platforms. [cite to Final Report: The Weaponization of the Federal Government, and that so gets a hard eyeroll from me.] These issues may indeed support a compelling governmental interest in narrowly tailored legislation designed to promote transparency or address demonstrable harms.

But the ancient common carrier doctrine is not the proper vehicle for addressing these concerns. Imposing common carrier obligations on Google’s search functions would necessarily compel the company to carry, rank, or display speech it would otherwise choose to de-emphasize or exclude — precisely the type of editorial discretion the First Amendment protects when exercised by private entities compiling and presenting third-party speech. [cite to Moody and Miami Herald v. Tornillo]

Conclusion

The court concludes:

Extending common carrier status here would not avoid First Amendment scrutiny; it would trigger it. Because Google’s search results are its own expressive product rather than neutral carriage, the common carrier doctrine does not fit this business model. Any broader regulatory response belongs to the legislative branch.

* * *

Among the many ways this opinion feels dated, there is a lot less emotional investment in Google’s blue organic links now that Google is highlighting AI overviews on its search results pages. Maybe we’ll get a round 2 of litigation claiming that the AI outputs should be treated like common carriers.

I don’t see how anyone who once jumped on the “Internet publishers are common carriers” bandwagon can read this opinion and not feel terrible about that position. This opinion is a thorough and persuasive rejection of the arguments.

Note that the court’s emphatic deference to the legislatures raises its own set of questions. We have seen many states enact terrible censorial legislation, including common carriage-like obligations in the Florida and Texas social media censorship laws. So I could easily see the Ohio legislature reading this opinion and responding “censorship challenge accepted!” Yet, the court opinion simultaneously makes it clear that the legislature doesn’t really have this authority. As the court also says, “Extending common carrier status here would not avoid First Amendment scrutiny; it would trigger it.” So for all of the opinion’s unnecessary digressions about legislative power, the opinion itself signals a huge flashing stoplight to legislatures considering whether they should jump on the fizzled common carriage fad.

Personnel note 1: This opinion was authored by Presiding Judge Andrew J. King, whose official bio says that “His prior public service includes serving as an…Attorney General for Dave Yost.” The opinion’s critiques of AG Yost’s censorial overreaches must sting a little harder when the author worked in his office.

Bloomberg Law also reports:

King is vying for the Republican nomination for one of two state Supreme Court seats up this year. A video he posted Monday on his campaign’s Facebook page described him as “the pro-Trump constitutional conservative”

AG Yost’s arguments couldn’t even sway a MAGA partisan seeking higher office. Sad!

Personnel note 2: Following an unsuccessful run for Ohio governor, Dave Yost recently stepped down as state AG. Per Wikipedia, he now has a leadership role in the “Alliance Defending Freedom, a conservative Christian legal advocacy group.” [And that differs from the Ohio AG’s office how…? <rimshot>] The press release. With the change in leadership in the Ohio AG’s office, will that affect the office’s willingness to keep litigating this case? My guess is this lawsuit was Yost’s idiosyncratic quest and not worth further AG office investments now that he’s gone.

Prior Blog Posts on Common Carriage

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

The post Google Search Isn’t a Common Carrier (duh)–Ohio v. Google appeared first on Technology & Marketing Law Blog.

On appeal, the Fifth Circuit embraces its characteristic chaos. First, it stayed the injunction without issuing an opinion. This is always terrible. Lifting the injunction changes the status quo without explaining why, making it virtually impossible to appeal. Courts should never do this. The injunction stay also potentially unleashed immediate action from AG/Senate candidate Paxton, who would love to bring another lawsuit against Google and Apple to try to distract Texas voters from his multitudinous political and personal flaws.

Then, a few days after staying the injunction, the Fifth Circuit issued a written opinion that, as usual, is untethered from US law. The opinion is also inappropriately brief and characteristically deficient on actual fact analysis. The published opinion is issued per curiam, which I suspect was intended to protect the authoring judge from accountabiilty for this turd.

The Fifth Circuit Opinion

Intermediate Scrutiny, Not Strict Scrutiny

The opinion says intermediate scrutiny applies because:

App store transactions are commercial in nature. After all, users browsing an app store can see a catalog of applications, obtain additional information, and download or purchase an application. App listings propose commercial transactions, regardless of whether any monetary payment is made. In fact, the “payment” for apps that are purportedly “free” is access to user data and private information….Detailed user data, including that of minors, is the lifeblood of the app store monetization ecosystem.

There are several problems with this:

• The fact that Google and Apple are for-profit entities and label themselves “stores” doesn’t automatically make everything they do “commercial speech.” Consider an analogy to Google search results. Some results are ads. Those are commercial speech. Some organic results are from commercial entitie hoping to catch customers. These may be commercial speech if they propose a transaction, but otherwise not. Some organic results are from non-commercial actors not looking to make any money at all. These are not commercial speech, even if Google is “monetizing” the page through the other ads elsewhere. Characterizing all Google search results as proposing a transaction would be a categorical error. I believe this opinion makes the same error for app store listings.
• In particular, many apps may not be commercial offerings at all. They could be apps from government entities, nonprofits, schools, religious organizations, or altruits who are giving their apps away for free with no strings attached. If a religious organization passes out leaflets on the street, they are not engaging in a commercial transaction of transferring leaflets.
• Many apps do not collect any private information from users, even if they are free-to-download. In those cases, there is no data “payment” at all. The opinion just made this fact up, using a factually unsupportable stereotype.
• The age authentication mandate is imposed on the app stores, but the opinion seems to be discussing the listings from the app developers. Is the app store carrying those listings “proposing a commercial transaction”? Part of the regulated activity is allowing users to access the app stores in the first place, before the user sees any listings. So the court has shifted the timing of the legally regulated activity to tell the story it wants to tell.

This passage is consistent with the prevailing Fifth Circuit opinion-drafting ethos, where it’s OK if the court doesn’t have the facts it wants because it can fill in the gaps with fiction.

In a footnote, the opinion says “SB2420 may not regulate speech at all, given that it does not target any substantive content but instead regulates commercial conduct with an incidental relationship to speech.” The so-called “commercial conduct” here would be the distribution of speech (the apps), but sure, let’s call that “an incidental relationship to speech.” Too bad the panel didn’t write that opinion.

The opinion cites the FSC v. Paxton opinion only twice, neither time to engage with the Supreme Court’s extensive discussion about why intermediate scrutiny was appropriate for age authentication mandates only if the mandates supported restrictions on content that is obscene as to minors–which is not the case. No one really believes the Supreme Court meant what it said in the FSC case (or any other case the Court is issuing nowadays), but the Fifth Circuit couldn’t even be bothered to engage with the opinion text.

Application of Intermediate Scrutiny

The opinion offers these conclusory statements without any further fact analysis:

Requiring age verification, parental consent, and app-related content ratings likely directly and materially advances Texas’s substantial interest in protecting children’s data, safety, and privacy in a digital world. Thus, there is likely a “reasonable fit” between SB2420’s methods and goals allowing parents to direct and supervise children’s downloads of apps and in-app purchases. That some works protected by the First Amendment may be the object of app downloads or in-app purchases does not categorically exempt them from ordinary regulations governing commercial transactions.

Restating a doctrine’s elements, without applying any of the facts to the elements, is the kind of rookie mistake that earns a C grade at best on a 1L final exam.

Disregarding Statutory Exclusions

The parental consent requirements exclude “emergency services and apps provided by an entity that develops standardized tests for use in postsecondary education.” The opinion disregards the favoritism towards these two categories because:

• the “emergency-services exception is not likely content-based but, instead, focuses on why the service is needed, not what is being communicated….Users do not need to create an account to access and use the emergency service app.” Huh? If the only type of permitted communication is content related to an emergency, how is that not content-based?
• the standardized test exclusion “which focuses on the identity of the speaker, does not necessarily reflect a content preference, but rather the reality that students often need to take tests….The speaker-based distinction appears to be content-neutral, not content-based, in discriminating among ideas or viewpoints.” The exception is for exams, which sounds pretty content-based to me. As a cheat, the opinion adds that the district court could just sever this provision if it’s unconstitutional.

No Vagueness

The opinion says the mandatory content rating scheme isn’t vague because the app stores can assume the apps set their ratings in good faith. The opinion says other challenged phrases are “plain and ordinary language [that] outlines its straightforward meaning” or have “well established and easily understood” meanings. Plus, there’s always the severability cheat.

Overbroad Injunction

The opinion says only the plaintiffs can receive the benefit of a court injunction, not any other regulated publishers.

Summation

The opinion rounds up its normative views:

The interests of Texas and the public interest coincide. Texas has a substantial, if not compelling, interest in protecting children, and parents need to have the necessary information to make informed choices affecting their children’s upbringing.

The need to protect children is intensified in the digital world, where app stores have violated existing consumer protection and child privacy laws for years, despite a federal consent decree. Absent SB2420, parents’ ability to protect their children is imperiled because app stores have encouraged minors to download applications and make in-app purchases without giving parents accurate content information or obtaining their informed consent. Any purported burden on app stores and developers is minimal because SB2420 requires only “commercially reasonable” verification methods and allows developers to use “widely adopted industry standards” in determining age ratings and those related to corresponding content.

Just about every word in this summation is wrong or misleading. Read my Segregate-and-Suppress paper for a fuller explanation of why.

Implications

Observation #1: Google and Apple didn’t challenge the law. They may be among the wealthiest companies that have ever existed in human history, but they let proxies and others carry their water and tell their story.

Observation #2: Despite the ongoing legal proceedings, and without even waiting to see the written opinion, Google and Apple immediately folded after the Fifth Circuit stayed the injunction. Both immediately complied with the law (Apple, Google).

Observation #3: The pliability of Google and Apple is nothing new. They have kowtowed to censors throughout the globe, so why not do so in the US too? The app stores have zero backbone when it comes to defending their editorial decision-making. As a reminder, the app stores didn’t challenge any of the many TikTok bans, even those that directly banned app stores from distributing TikTok.

Observation #4: Now that Apple and Google have rolled, what is the likelihood they will undo their implementation if the law gets overturned on further proceedings? I would rank the odds at zero. Once a censorship infrastructure is implemented, it rarely is ripped back out. This type of sticky interim compliance is a prime reason why censors can win, even if they pass unconstitutional laws.

Observation #5: The likelihood that regulated publishers will engage in interim compliance shows some problems with the Moody v. NetChoice opinion, which raised the bar on facial constitutional challenges. (This opinion observes, without doing any of the analytical work, that “It is highly unlikely that Plaintiffs have met this ‘rigorous standard'” for a facial challenge set by the Moody decision). If a publishers has to break the law and expose itself to the associated legal consequences to find out if a law is unconstitutional, we get a lot more censorship compliance and a lot fewer constitutional challenges.

Case Citation: Students Engaged in Advancing Texas v. Paxton, No. 25-51073 (5th Cir. June 4, 2026)

* * *

Blog Posts on Segregate-and-Suppress Obligations

• How Often Do Consumers Balk at Doing Online Age Authentication?
• Court Enjoins Another Arkansas Segregate-and-Suppress Law–NetChoice v. Griffin
• Too Many Courts Are Letting States Take Wrecking Balls to the Internet (Roundup)
• Texas Judge Enjoins App Store Authentication Law–CCIA and SEAT v. Paxton
• Courts Enjoin Internet Censorship Laws in Louisana and Arkansas
• Challenge to Maryland’s “Kid Code” Survives Motion to Dismiss–NetChoice v. Brown
• My Testimony Against Mandatory Online Age Authentication
• Read the Published Version of My Paper Against Mandatory Online Age Authentication
• Prof. Goldman’s Statement on the Supreme Court’s Demolition of the Internet in Free Speech Coalition v. Paxton
• Court Permanently Enjoins Ohio’s Segregate-and-Suppress/Parental Consent Law–NetChoice v. Yost
• Arkansas’ Social Media Safety Act Permanently Enjoined—NetChoice v. Griffin
• Why I Emphatically Oppose Online Age Verification Mandates
• California’s Age-Appropriate Design Code (AADC) Is Completely Unconstitutional (Multiple Ways)–NetChoice v. Bonta
• Another Conflict Between Privacy Laws and Age Authentication–Murphy v. Confirm ID
• Recapping Three Social Media Addiction Opinions from Fall (Catch-Up Post)
• District Court Blocks More of Texas’ Segregate-and-Suppress Law (HB 18)–SEAT v. Paxton
• Comments on the Free Speech Coalition v. Paxton SCOTUS Oral Arguments on Mandatory Online Age “Verification”
• California’s “Protecting Our Kids from Social Media Addiction Act” Is Partially Unconstitutional…But Other Parts Are Green-Lighted–NetChoice v. Bonta
• Section 230 Defeats Underage User’s Lawsuit Against Grindr–Doll v. Pelphrey
• Five Decisions Illustrate How Section 230 Is Fading Fast
• Internet Law Professors Submit a SCOTUS Amicus Brief on Online Age Authentication–Free Speech Coalition v. Paxton
• Court Enjoins the Utah “Minor Protection in Social Media Act”–NetChoice v. Reyes
• Another Texas Online Censorship Law Partially Enjoined–CCIA v. Paxton
• When It Comes to Section 230, the Ninth Circuit is a Chaos Agent–Estate of Bride v. YOLO
• Court Dismisses School Districts’ Lawsuits Over Social Media “Addiction”–In re Social Media Cases
• Ninth Circuit Strikes Down Key Part of the CA Age-Appropriate Design Code (the Rest is TBD)–NetChoice v. Bonta
• Mississippi’s Age-Authentication Law Declared Unconstitutional–NetChoice v. Fitch
• Indiana’s Anti-Online Porn Law “Is Not Close” to Constitutional–Free Speech Coalition v. Rokita
• Fifth Circuit Once Again Disregards Supreme Court Precedent and Mangles Section 230–Free Speech Coalition v. Paxton
• Snapchat Isn’t Liable for Offline Sexual Abuse–VV v. Meta
• 2023 Quick Links: Censorship
• Court Enjoins Ohio’s Law Requiring Parental Approval for Children’s Social Media Accounts–NetChoice v. Yost
• Many Fifth Circuit Judges Hope to Eviscerate Section 230–Doe v. Snap
• Louisiana’s Age Authentication Mandate Avoids Constitutional Scrutiny Using a Legislative Drafting Trick–Free Speech Coalition v. LeBlanc
• Section 230 Once Again Applies to Claims Over Offline Sexual Abuse–Doe v. Grindr
• Comments on the Ruling Declaring California’s Age-Appropriate Design Code (AADC) Unconstitutional–NetChoice v. Bonta
• Two Separate Courts Reiterate That Online Age Authentication Mandates Are Unconstitutional
• Minnesota’s Attempt to Copy California’s Constitutionally Defective Age Appropriate Design Code is an Utter Fail (Guest Blog Post)
• Do Mandatory Age Verification Laws Conflict with Biometric Privacy Laws?–Kuklinski v. Binance
• Why I Think California’s Age-Appropriate Design Code (AADC) Is Unconstitutional
• An Interview Regarding AB 2273/the California Age-Appropriate Design Code (AADC)
• Op-Ed: The Plan to Blow Up the Internet, Ostensibly to Protect Kids Online (Regarding AB 2273)
• A Short Explainer of Why California’s Social Media Addiction Bill (AB 2408) Is Terrible
• A Short Explainer of How California’s Age-Appropriate Design Code Bill (AB2273) Would Break the Internet
• Is the California Legislature Addicted to Performative Election-Year Stunts That Threaten the Internet? (Comments on AB2408)
• Omegle Denied Section 230 Dismissal–AM v. Omegle
• Snapchat Isn’t Liable for a Teacher’s Sexual Predation–Doe v. Snap
• Will California Eliminate Anonymous Web Browsing? (Comments on CA AB 2273, The Age-Appropriate Design Code Act)
• Minnesota Wants to Ban Under-18s From User-Generated Content Services
• California’s Latest Effort To Keep Some Ads From Reaching Kids Is Misguided And Unconstitutional (Forbes Cross-Post)
• Backpage Gets Important 47 USC 230 Win Against Washington Law Trying to Combat Online Prostitution Ads (Forbes Cross-Post & More)
• Backpage Gets TRO Against Washington Law Attempting to Bypass Section 230–Backpage v. McKenna
• MySpace Wins Another 47 USC 230 Case Over Sexual Assaults of Users–Doe II v. MySpace
• MySpace Gets 230 Win in Fifth Circuit–Doe v. MySpace
• Website Isn’t Liable When Users Lie About Their Ages–Doe v. SexSearch

The post Fifth Circuit Keeps Doing Fifth Circuit Things 📉–SEAT v. Paxton appeared first on Technology & Marketing Law Blog.

On March 9, 2026, Judge Chesney granted a preliminary injunction in the case of Amazon v. Perplexity, concluding Amazon was likely to succeed on its CFAA and California Penal Code section 502 theories.

If you’re familiar with the CFAA, the outcome of the preliminary injunction opinion was what you might expect.

But it is underwhelming in some new and interesting ways. It is, in my opinion, a shockingly poor effort to grapple with CFAA applicability to agentic AI technology after Van Buren.

If you’re unfamiliar, agentic AI is simply the name for AI that actually does work for you instead of answering questions. An agent can take a loose goal, break it into steps, use tools, gather information, make decisions, and come back with the task done. That makes it useful for the work people hate but still need judgment to finish, such as research, product comparisons, customer support, and multi-step coordination.

One valuable use case for agentic AI is shopping. Not only can Agentic AI tell you what the highest rated toaster on Amazon is for under $100, it can actually buy it for you.

You can tell agentic AI:

Buy a toaster on Amazon for under $100. Prioritize name brands, Amazon Prime shipping, and wide slots for bagels. Do not buy based solely on Amazon rating. Consider only models with at least 1,000 reviews, a rating of 4.7 or higher, and no obvious fake-review pattern. Cross-check at least two independent review sources or testing sites for confirmation that the quality is among the best at this price point. Choose a 2-slice toaster unless a 4-slice model is clearly better.

If one option is clearly superior under these criteria, add it to my cart and proceed to purchase. If not, add the best by these measures and I will review and purchase.

The thing about instructions like these is that they totally kill many of the ways online e-commerce sites make money. Amazon doesn’t just make money from selling you stuff and sending it to you. They also make money from product placement, ads, upselling, and a million other ways of nudging you into buying more stuff.

Amazon wants their search bar to be the way that you buy things online. But if the interface for your shopping becomes the AI labs’ platforms, that’s a big deal for e-commerce sites. It’s an existential threat to some e-commerce platforms and a major margins headwind for giants like Amazon and Walmart.

Those are the stakes.

* * *

The injunction in this case arose from Amazon’s challenge to Perplexity’s Comet browser and shopping agent. Perplexity built a tool that allows software to shop for users on Amazon through their logged-in accounts. Amazon sent a cease-and-desist letter. But Comet didn’t stop.

Created by ChatGPT Dec. 2025

The court focused on a familiar question for CFAA folks, which is that Amazon allegedly revoked authorization, Perplexity’s agents continued accessing Amazon’s systems through user accounts, and therefore Amazon was likely to succeed under theories derived from CFAA and California computer-access law.

From a pure CFAA perspective, the allegations were straightforward. Monopolist platform discovers a kind of automation that people who use the Internet enjoy, labels it “unauthorized,” cites to Power Ventures, points to investigative costs, and gets its injunction. It has happened before and it will happen again.

But the genuinely novel issue was totally ignored in the opinion. Perplexity’s Comet is an AI agent. And agentic AI is not merely collecting data. It is acting as the user’s delegated representative in an ongoing workflow.

The opinion makes zero effort to analyze:

• whether an AI agent should be treated like a browser,
• whether it should be treated like a human assistant using delegated credentials,
• whether agency-law concepts matter,
• whether user autonomy creates an independent authorization interest distinct from Power Ventures,
• whether there is a meaningful distinction between scraping data and performing user-directed actions.

Instead, the court seems to jump directly to the conclusion that Amazon retains ultimate authority to exclude the intermediary.

(In partial defense of the court, they hint that they may have discussed this at oral arguments. But there’s no analysis of agentic AI in the opinion itself).

From an agentic-AI perspective, it’s straightforward to ask:

If I can personally log into Amazon and buy a toaster, why can’t I save time and have software do it for me?

Because Power Ventures is dumb and Amazon says so, that’s why.

The Power Ventures framing has always allowed platforms to control their platforms, even when the user wants a certain tool to interact with them, if the integration includes a logged-in component. If there is a password at any part of the flow, most courts find that the CFAA can be used to crush any unwanted integration, no matter how benign or socially useful it is. Log-in plus cease-and-desist has almost always been a CFAA violation.

That’s why Power Ventures matters so much. If Power Ventures controls, Amazon gets to frame Comet as just another unwanted logged-in integration. If it doesn’t, the case becomes about whether users can delegate ordinary account activity to software.

That is also what makes this such an interesting test case for Power Ventures. Amazon wants to put Comet in the Power Ventures box, and legally, that is exactly where a plaintiff wants to be. But the factual analogy is imperfect. Power Ventures was not merely helping users operate Facebook. It built a competing service, collected Facebook users’ information, imported that information into its own platform, and used users’ networks to market itself. Comet’s better factual description is simpler, because the user is still shopping. The user just has delegated parts of the shopping flow to software.

If Power Ventures means that a platform can veto any third-party agent, then the CFAA becomes a platform-control statute for the agentic web. Maybe that is where the Ninth Circuit ultimately lands. But if that’s the case, the CFAA is going to be an increasingly unpopular law.

What’s especially disappointing is that courts continue to pretend that there are not difficult policy questions to consider with these new technologies. It is particularly true in this case, because it was a preliminary injunction proceeding, and the court was required to consider the broader public interest question. Perplexity argued that an injunction would disserve the public interest in consumer choice and innovation.

The court’s response was as thin and fragile as overcooked spaghetti. It said that the public has an interest in preventing unauthorized access to computers, and that was that.

The platform says it’s not allowed, therefore it’s not allowed, and it’s in the public’s interest for it not to be allowed.

See how easily we resolved issues with agentic AI?

Reasoning like this makes the CFAA one giant circle of enforcing platform preferences.

To be clear, there’s an argument for Amazon’s position, too. Platforms have real interests in account security, fraud prevention, bot detection, and knowing whether an automated system is moving through logged-in user accounts. But that’s only a small part of the story.

The anti-competitive implications here are super-obvious. Perplexity’s stated theory of the case is that Amazon does not like a user tool that routes around Amazon’s preferred shopping and advertising experience. AI agents “don’t have eyeballs” for the ads Amazon “bombards” users with. Even if you think that line is a bit cute, the underlying point is real. Intermediaries often threaten incumbents precisely because they reduce friction, reorder presentation, or weaken monetization levers the incumbent would rather preserve. Search engines did that. Price-comparison tools do that. Browser extensions do that. API clients and integrations do that. AI agents will absolutely do that in a way that the platforms are not yet prepared to deal with.

Stated plainly, the public interest section just isn’t serious here. A court need not become an antitrust tribunal every time someone says “innovation” or “consumer choice.” But this fact pattern is different from the fact pattern in Power Ventures. A court has a duty to at least think about that.

—

The other interesting part of this case is it’s another test of the definition of technological harm after Van Buren.

Knowing that the Power Ventures question was always going to be a tough climb, Perplexity also asked some of the other tough CFAA questions that Van Buren didn’t bother to answer. The order recognizes that Van Buren at least raises a question about whether “loss” should be limited to technological harms, and it notes the Ninth Circuit’s comment in hiQ about Van Buren requiring such harms. Then it basically shrugs and says, in substance, “this is going to be resolved in Amazon’s favor,” without any explanation or analysis of whether that’s the correct outcome.

To me, the technological harm question would be the easiest way to separate Power Ventures from benign or socially useful integrations. A few courts have agreed, but many do not.

And whether I like it or not, the Section 502 piece of the opinion is even more “chalk” than the CFAA ruling. California cases have long treated response and investigatory expenses as cognizable losses under Section 502. This also dates back to Power Ventures and beyond. So if defendants already face an uphill fight arguing that CFAA investigative costs must be tethered to technological harm notwithstanding Van Buren’s “technological harms” language, that argument is harder still under Section 502, where Van Buren is not controlling and the California text is friendlier to verification costs.

Regardless, it is hard to imagine that Power Ventures will survive agentic AI forever. Sooner or later, courts will be forced to acknowledge that people should be allowed to delegate to software tasks that they are legally allowed to do themselves, especially as software gets better and better at doing those tasks. But for now, Power Ventures stays intact. Until courts grapple with the power with what agentic AI actually does, the CFAA will remain what large platforms want it to be. Not just a law against hacking, but a legal cudgel against unwanted interoperability or user preferences.

The real task is for courts to acknowledge that platforms don’t need unchecked authority to kill all forms of automation on their platforms, but should instead distinguish malicious automation from disclosed, user-directed software that functions as the user’s chosen interface. I think we’ll get there eventually, but this opinion makes me think it’ll be some time before we do.

The post When Can Amazon Block an Agentic AI Service?–Amazon v. Perplexity (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

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

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

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

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

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

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

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

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

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

The court describes Starr’s claims against Google:

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

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

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

Lanham Act False Designation of Origin

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

Tortious Interference

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

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

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

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

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

* * *

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

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

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

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

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