Consumer Consent

LinkedIn’s own disclosures may be sufficient (see LB v. LinkedIn in my prior post), but its partners’ disclosures are not. Covered California’s disclosures expressly say “no personal information is sold or distributed,” and Nevada Health Link’s disclosures do not mention sharing data with third parties.

Furthermore, “Courts have often found a lack of consent when the type of data collected, though conceivably included in the disclosure, falls outside the plaintiffs’ reasonable expectations.” LinkedIn capturing consumers’  “medication and dosage” would be outside such expectaions. The complaint against Covered California was not specific enough about its data captures, but that can be fixed in an amended complaint.

LinkedIn’s Intent to Intercept

Johnson alleges that LinkedIn intentionally intercepted her and class members’ communications regarding their medical care through the Insight Tag, which Johnson alleges LinkedIn designed to collect all interactions with the Nevada Health Link website. Johnson also alleges that the issue of health information being shared via tracking technology is so well known in the technology industry that LinkedIn should have known its Insight Tag was likely collecting personal health information. Finally, Johnson alleges that LinkedIn monetized the intercepted personal health information in the form of targeted advertising, which is most of LinkedIn’s revenue. Though the inference of intent may be relatively weak in light of LinkedIn’s policies to the contrary and the absence of specific facts concerning how LinkedIn uses the data it allegedly receives from the Insight Tag, the Court finds these allegations sufficient to survive a motion to dismiss

So…the court says LinkedIn has sufficient “intent” to intercept sensitive consumer data even if its contract with customers restricted such efforts, because LinkedIn should have known data leakages would occur? That doesn’t sound like “intent” to me. See the Pharmatrak case from 2003…

LinkedIn argued that the Nevada Health Link is a government agency, so it should be entitled to the presumption of regularity, i.e., that it followed its own policies and the LinkedIn agreement. The court says that presumption, if it applies at all, is more of an evidentiary burden, not a legal matter that supports motions to dismiss. Plus, Johnson alleged a wrongful data collection of their data, regardless of the entities’ general policies.

Intrusion Upon Seclusion

LinkedIn fails to provide any support for its argument that the “amount” of information disclosed, the public availability of the website, or the optional nature of some forms are relevant to the degree of intrusion or otherwise cause the context, circumstances, and setting factors to tip in LinkedIn’s favor. For purposes of the motion to dismiss, the Court finds Johnson’s allegations that LinkedIn’s unauthorized interception of information regarding her medication and dosage was “highly offensive” conduct sufficient.

Based on my unscientific review of the Pixel cases, it seems like the lawsuits against healthcare entities frequently survive motions to dismiss. It will be an entirely different matter for plaintiffs to win the cases and defend those rulings on appeal.

Case Citation: Doe v. LinkedIn Corp., 2026 WL 2199526 (N.D. Cal. July 30, 2026)

More Posts on the Pixel Cases and Related Claims

• Third Circuit Rejects a Meta Pixels Case–Cole v. Quest Diagnostics
• The Wrap Taxonomy Vexes the Judge in the LinkedIn Insight Tag Cases
• The Second Circuit Is Done With Meta Pixels VPPA Cases–Hughes v. NFL
• Court Rejects Trespass to Chattels Claim Over Placing Cookies–Doe v. Tenet
• Clickwrap Formed Even When a Consumer Has Limited Time to Act–Washington v. Flixbus
• Meta Pixels Case Dismissed by Second Circuit–Solomon v. Triller
• Leaky TOS Formation = No TOS Formation–Snyder v. G6
• The VPPA May Be a Dinosaur Statute, But It’s Very Much Alive in the Second Circuit–Salazar v. NBA
• Pixel Case Against Google “Jumps the Shark”–Doe I v. Google (Catch Up Post)
• Think You Understand Online Trespass to Chattels Law? Think Again–In re Meta Healthcare Pixels
• More Chaos in the Law of Online Contract Formation
• Privacy Lawsuit Based on Website Tracking by Service Provider Trimmed

The post LinkedIn’s Insight Tag Creates Legal Entanglements–Doe v. LinkedIn appeared first on Technology & Marketing Law Blog.

In this case, “JDPI argues that the Bad Spaniels toy dilutes its marks ‘by associating the famed whiskey with,’ as the Supreme Court put it, ‘dog excrement.'” However, “as JDPI concedes, the ‘Bad Spaniels’ mark ‘does not itself refer to defecation’ and therefore is not facially tarnishing.”

On remand from the Supreme Court, the Ninth Circuit concluded again that the Bad Spaniels dog toy does not dilute Jack Daniel’s trademark.

The panel defines the scope of dilution by tarnishment: “when conducting a tarnishment analysis, courts may only consider the dilutive effect of a junior mark that is similar to a corresponding famous mark.” This simple principle filters out a lot of Jack Daniel’s arguments:

The only marks JDPI proved famous are “Jack Daniel’s” and its registered trade dress. All other senior marks, including “Old No. 7,” therefore drop out of our analysis….

“Old No. 7” cannot be famous under the TDRA simply because “Jack Daniel’s” is.

For example, Jack Daniel’s objects to Bad Spaniels’ “43% poo by volume,” but Jack Daniel’s use of “40% alc. by vol. (80 proof)” isn’t a trademark at all. The panel’s methodology essentially isolates each parodic element rather than look at the combined effect of the Bad Spaniels’ toy.

Furthermore, “neither ‘Bad Spaniels’ nor the toy’s trade dress facially tarnish JDPI’s corresponding famous marks.” (The court doesn’t define “facial tarnishment” but suggests it occurs when the tarnishing attribute is included in the brand usage). Without that, the court looks to see if tarnishment can be inferred another way. The court suggests:

In some circumstances, an association may dilute the famous mark even where the junior mark is not tarnishing on its face. If a junior mark is not facially tarnishing, the context in which it is used may become relevant to the tarnishment analysis, depending on the facts of the case. For example, using a famous mark or a closely related depiction on a product that is of poor quality or pornographic or illegal may be tarnishing if the other requisites are met.

To bolster its claim, Jack Daniel’s introduced a survey from Dr. Itamar Simonson, which the panel deconstructs. The survey covered aspects that weren’t famous, like “Old No. 2,” and the survey only showed a possible negative connection “between some broad concept of defecation and consumption of food and drink products,” not the specific marks at issue here. The panel concludes:

There is no evidence in the record from which a court could reasonably infer that scatological references made on a dog toy have the same likelihood of generating disgust as identical references on a consumable product meant for humans might. Dr. Simonson’s opinion to the contrary is pure conjecture.

The Supreme Court foreclosed the statutory parody defense in this case, but the panel says that Bad Spaniels’ parodic nature can nevertheless affect the likelihood of tarnishment, and this further undermines Dr. Simonson’s survey:

Dr. Simonson’s analysis ignored the effect of a “humorous difference” on whether Bad Spaniels harms the reputation of JDPI’s famous marks…Parody, however, is inherent in the Bad Spaniels product—indeed, as Dr. Simonson recognized, it was the “whole point.” Failing to consider the effect of VIP’s obvious parody on the likelihood of tarnishment was a critical misstep

The Ninth Circuit dismisses the case.

Implications

• Given the amount of time and money Jack Daniel’s has already spent on this case, I assume it’s headed to the Supreme Court again? However, it would be wild if the Supreme Court decides to take it.
• I’m not clear what constitutes facial tarnishment. It seems like Bad Spaniels was a good wording choice, but would Pooping Spaniels have been a bad choice? Is Enjoy Cocaine facially tarnishing or not?
• The panel glosses over dilution of the trade dress. That might be because of how Jack Daniel’s structured its argument or the scope of Dr. Simonson’s survey. Still, trade dress dilution would have benefited from more explication separate from the word mark.
• The purported flaws in Dr. Simonson’s survey seem easy enough to fix. A couple more questions on the consumer survey could connect the dots concretely between the marks, rather than the more abstract connections between poop and food.
• Even so, the panel’s methodologies will make it very hard for trademark owners to prevail against parodic products. The panel: deconstructed the parody and filtered out the aspects that weren’t within the famous trademark’s scope; required the trademark owner to show how the remaining attributes created a likelihood of dilution; and considered the attempted jokes as part of that likelihood assessment. If this remains the standard, trademark owners face an uphill challenge in future cases.
• It is mind-blowing how much money Jack Daniel’s has spent on this case. It only makes sense if Jack Daniel’s is trying to intimidate future parodists, because the dollar value and consumer exposure of Bad Spaniels has to be trivial absent Jack Daniel’s decade-long litigation to squash it.

Case Citation: VIP Products LLC v. U.S., No. 25-2027 (9th Cir. August 4, 2026)

Prior Blog Posts in this Case

• Resolving Conflicts Between Trademark and Free Speech Rights After Jack Daniel’s v. VIP Products (Guest Blog Post)
• The First Amendment Limits Trademark Rights, But How?–Jack Daniel’s v. Bad Spaniels (Guest Blog Post)
• Ninth Circuit Rallies in Defense of a Parody Dog Toy–Bad Spaniels v. Jack Daniel’s

The post It’s Hard for Parodic Products to Tarnish Famous Trademarks–Bad Spaniels v. Jack Daniel’s appeared first on Technology & Marketing Law Blog.

Is “Battery Tender” Generic?

The court says that the term “battery tender” isn’t inherently generic because (1) the USPTO registered the term, and “registration puts a heavy thumb on the scale against genericness,” (2) it’s better characterized as a descriptive term because “tend is more a metaphorical than literal description of what a battery tender does,” and it has achieved secondary meaning over 30+ years, and (3) the plaintiff’s principal coined the term.

Keyword Advertising

Keyword bidding doesn’t constitute trademark infringement for a simple reason: It’s not “likely to cause consumer confusion with the plaintiff’s mark.” And it’s unlikely to cause consumer confusion with the plaintiff’s mark for an equally straightforward reason: The use of the plaintiff’s mark for keyword-bidding purposes occurs “behind the scenes,” so to speak. Consumers don’t—indeed, can’t—see the plaintiff’s mark—all that’s visible here is a NOCO ad….A consumer who sees a NOCO-sponsored ad, whether or not driven by keyword bidding, may well recognize the promoted NOCO product as an alternative to consider, but he’s unlikely for that reason alone to mistake it for Deltona’s own offering. Accordingly, confusion here depends on whether Deltona’s mark is visible in NOCO’s ad, not whether an ad that does not display or otherwise reference Deltona’s mark might have been (invisibly) triggered by the mark’s behind-thescenes use as a keyword.

The court acknowledges that keyword ads may distract consumers. However, “so long as NOCO’s ads don’t hold that company out as selling “battery tenders,” consumers aren’t likely to be confused—just potentially overwhelmed by the presence of alternative products.”

The court summarizes: “In holding that keyword bidding can’t constitute trademark infringement, we join the unanimous consensus of our sister circuits.” For this reason, the jury’s damages award needs to be reduced to the extent it was predicated on keyword ads.

Trademark Usage in Amazon Ad Text

This is wheelhouse trademark infringement; NOCO’s conduct was likely to mislead consumers into thinking that it sold “battery tenders.” NOCO insists that its ads weren’t confusing because Amazon marked them as “sponsored” and customers would therefore recognize them as ads. Even so, the sponsored ads’ content effectively stated that NOCO sold battery tenders, which it doesn’t—only Deltona does.

Usage in Amazon Product Description Text

Product descriptions are “below the line,” so to speak, and in smaller print—they are meant to inform a diligent customer rather than grab his attention. As a result, consumers are probably less likely to focus on them in the way they do the ads.

[Citation clearly needed for the last point. The panel appears to be making up hypotheses about consumer behavior.]

The court nevertheless ratifies the jury finding: “We think it clear that a reasonable jury could find that the product descriptions were part of an effort to misappropriate Deltona’s goodwill and confuse consumers.”

NOCO argued that the “battery tender” references in the product descriptions should be excused like keyword advertising. The court distinguishes product listings from keyword ads:

• “Even if less conspicuous or prominent than the ad’s main text, it isn’t entirely invisible to the consumer’s eye in the way that a behind-the-scenes keyword is.”
• The ad’s “sponsored” label would alert consumers of the differences between the companies. [This also seems like a dubious empirical claim.]

The court summarizes:

Even if consumers didn’t actually read NOCO’s product descriptions, NOCO impermissibly held itself out in those descriptions as a seller of battery tenders, rather than a provider of alternatives to battery tenders, as it did, for instance, when using a keyword-bidding strategy to drive traffic to its own products. The inclusion of “battery tender” in the description automatically not only affected Amazon search results but also drove shoppers searching for Deltona’s battery tenders to NOCO chargers without alerting them in any way—through a “sponsored” tag or otherwise—that they weren’t really looking at battery tenders.

[To be fair, NOCO’s attempts to equate keyword ads with product listings seems like it was never destined for success. NOCO had an appellate team of 7 Biglaw lawyers, apparently led by Jones Day and supported by Goodwin Proctor and Troutman Pepper. That’s a lot of very expensive lawyers who signed off on seemingly dubious positions. FWIW, Deltona’s appellate team was 3 lawyers from Shutts & Bowen.]

Other Marketing References

“The evidence supports the conclusion that, from the top down, NOCO actively tried to sow confusion about what a battery tender is.”

Injunction

Among other things, the lower court enjoined NOCO’s use of the term “tender,” even though Deltona’s trademark is “battery tender” and not just “tender.” The appellate court circles one of NOCO’s Amazon ads: “More Than Just A Tender. The Ultimate Charger.” To me, that sounds like comparative advertising or free use of a dictionary word that isn’t covered by a trademark registration, but the appellate court calls that a “loophole.” As a result, the appellate court upholds the injunction.

Implications

NOCO get a new trial to recompute actual damages, stripped of the keyword ads and some other pieces the appellate court reversed. I imagine the parties will settle rather than do a retrial because trial prep would likely cost more than any adjustments to the damages amount.

You can see what happens when a descriptive term (“battery tender”) gets weaponized. A competitor thought they could freely use the term, went too far, and will pay a high price for their error.

Despite the mostly-bad news for NOCO, the ruling does have a major bright spot: the court’s declaration that the 11th Circuit permits competitive keyword advertising, at least so long as the resulting ads don’t include the trademark in the text. This outcome isn’t surprising given how the 2nd and 9th Circuits have emphatically shut down keyword advertising cases. Still, extending that principle to a new geographic region is welcome news.

Emoji Discussion!

The court includes the following transcript of NOCO’s “virtual brainstorming session”:

The opinion shows its emojis! Yay! However, FN 2 says:

The documents in the record converted the emojis to their shortcodes (e.g., :joy: or :rolling on the floor laughing:). For clarity, we have replaced the shortcodes with the actual emojis to reflect the exchange as it presumably appeared between the NOCO employees.

There are a couple of problems here:

• The parties didn’t properly prepare the evidence, so the emojis weren’t properly recorded in the record.
• The judge can’t accurately recreate the emojis this way. First, each platform depicts the shortcodes differently, and the judge doesn’t explain how he picked these particular depictions. The images he picked may not accurately reflect how the emojis were actually depicted. Plus, because emoji depictions evolve over time, shortcodes today may produce a different depiction than the shortcodes did at the relevant time period. Further, emojis may differ in how the sender and recipient see them. As I say in my judicial trainings on emojis, emoji depictions should come in pairs. The judge assumed a canonical depiction, but that is typically a fallacy.

Case Citation: Deltona Transformer Corporation v. NOCO Company, 2026 WL 2236806 (11th Cir. Aug. 4, 2026)

* * *

More Posts About Keyword Advertising

* Another Reminder: Lawsuits Over Competitive Keyword Ads Are Stupid
* Post-Mortem of a Misguided Logo Trademark Lawsuit–LegalForce v. Internet Brands
* The Initial Interest Confusion Doctrine Refuses to Die
* Court Rejects Initial Interest Confusion Claims for Competitive Keyword Ads–Regalo v. Aborder
* Lawsuits Over Competitive Keyword Advertising Are Still Stupid–NRRM v. American Dream Auto Protect
* NJ Supreme Court Blesses Lawyers’ Competitive Keyword Ads (With a Baffling Caveat)
* Ninth Circuit Tells Trademark Owners to Stop Suing Over Competitive Keyword Ads–Lerner & Rowe v. Brown Engstrand
* Second Circuit Tells Trademark Owners to Stop Suing Over Competitive Keyword Advertising
* Catching Up on Two Keyword Ad Cases
* Competitor Isn’t Responsible for Google Knowledge Panel’s Contents–International Star Registry v. RGIFTS
* TIL: “Texas Tamale” Is an Enforceable Trademark–Texas Tamale v. CPUSA2
* Internal Search Results Aren’t Trademark Infringing–PEM v. Peninsula
* When Do Inbound Call Logs Show Consumer Confusion?–Adler v McNeil
* Court Denies Injunction in Competitive Keyword Ad Lawsuit–Nursing CE Central v. Colibri
* Competitive Keyword Ad Lawsuit Fails…Despite 236 Potentially Confused Customers–Lerner & Rowe v. Brown Engstrand
* More on Law Firms and Competitive Keyword Ads–Nicolet Law v. Bye, Goff
* Yet More Evidence That Keyword Advertising Lawsuits Are Stupid–Porta-Fab v. Allied Modular
* Griper’s Keyword Ads May Constitute False Advertising (Huh?)–LoanStreet v. Troia
* Trademark Owner Fucks Around With Keyword Ad Case & Finds Out–Las Vegas Skydiving v. Groupon
* 1-800 Contacts Loses YET ANOTHER Trademark Lawsuit Over Competitive Keyword Ads–1-800 Contacts v. Warby Parker
* Court Dismisses Trademark Claims Over Internal Search Results–Las Vegas Skydiving v. Groupon
* Georgia Supreme Court Blesses Google’s Keyword Ad Sales–Edible IP v. Google
* Competitive Keyword Advertising Claim Fails–Reflex Media v. Luxy
* Think Keyword Metatags Are Dead? They Are (Except in Court)–Reflex v. Luxy
* Fifth Circuit Says Keyword Ads Could Contribute to Initial Interest Confusion (UGH)–Adler v. McNeil
* Google’s Search Disambiguation Doesn’t Create Initial Interest Confusion–Aliign v. lululemon
* Ohio Bans Competitive Keyword Advertising by Lawyers
* Want to Engage in Anti-Competitive Trademark Bullying? Second Circuit Says: Great, Have a Nice Day!–1-800 Contacts v. FTC
* Selling Keyword Ads Isn’t Theft or Conversion–Edible IP v. Google
* Competitive Keyword Advertising Still Isn’t Trademark Infringement, Unless…. –Adler v. Reyes & Adler v. McNeil
* Three Keyword Advertising Decisions in a Week, and the Trademark Owners Lost Them All
* Competitor Gets Pyrrhic Victory in False Advertising Suit Over Search Ads–Harbor Breeze v. Newport Fishing
* IP/Internet/Antitrust Professor Amicus Brief in 1-800 Contacts v. FTC
* New Jersey Attorney Ethics Opinion Blesses Competitive Keyword Advertising (…or Does It?)
* Another Competitive Keyword Advertising Lawsuit Fails–Dr. Greenberg v. Perfect Body Image
* The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword Ads
* Rounding Up Three Recent Keyword Advertising Cases–Comphy v. Amazon & More
* Do Adjacent Organic Search Results Constitute Trademark Infringement? Of Course Not…But…–America CAN! v. CDF
* The Ongoing Saga of the Florida Bar’s Angst About Competitive Keyword Advertising
* Your Periodic Reminder That Keyword Ad Lawsuits Are Stupid–Passport Health v. Avance
* Restricting Competitive Keyword Ads Is Anti-Competitive–FTC v. 1-800 Contacts
* Another Failed Trademark Suit Over Competitive Keyword Advertising–JIVE v. Wine Racks America
* Negative Keywords Help Defeat Preliminary Injunction–DealDash v. ContextLogic
* The Florida Bar and Competitive Keyword Advertising: A Tragicomedy (in 3 Parts)
* Another Court Says Competitive Keyword Advertising Doesn’t Cause Confusion
* Competitive Keyword Advertising Doesn’t Show Bad Intent–ONEpul v. BagSpot
* Brief Roundup of Three Keyword Advertising Lawsuit Developments
* Interesting Tidbits From FTC’s Antitrust Win Against 1-800 Contacts’ Keyword Ad Restrictions
* 1-800 Contacts Charges Higher Prices Than Its Online Competitors, But They Are OK With That–FTC v. 1-800 Contacts
* FTC Explains Why It Thinks 1-800 Contacts’ Keyword Ad Settlements Were Anti-Competitive–FTC v. 1-800 Contacts
* Amazon Defeats Lawsuit Over Its Keyword Ad Purchases–Lasoff v. Amazon
* More Evidence Why Keyword Advertising Litigation Is Waning
* Court Dumps Crappy Trademark & Keyword Ad Case–ONEPul v. BagSpot
* AdWords Buys Using Geographic Terms Support Personal Jurisdiction–Rilley v. MoneyMutual
* FTC Sues 1-800 Contacts For Restricting Competitive Keyword Advertising
* Competitive Keyword Advertising Lawsuit Will Go To A Jury–Edible Arrangements v. Provide Commerce
* Texas Ethics Opinion Approves Competitive Keyword Ads By Lawyers
* Court Beats Down Another Competitive Keyword Advertising Lawsuit–Beast Sports v. BPI
* Another Murky Opinion on Lawyers Buying Keyword Ads on Other Lawyers’ Names–In re Naert
* Keyword Ad Lawsuit Isn’t Covered By California’s Anti-SLAPP Law
* Confusion From Competitive Keyword Advertising? Fuhgeddaboudit
* Competitive Keyword Advertising Permitted As Nominative Use–ElitePay Global v. CardPaymentOptions
* Google And Yahoo Defeat Last Remaining Lawsuit Over Competitive Keyword Advertising
* Mixed Ruling in Competitive Keyword Advertising Case–Goldline v. Regal
* Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC
* Damages from Competitive Keyword Advertising Are “Vanishingly Small”
* More Defendants Win Keyword Advertising Lawsuits
* Another Keyword Advertising Lawsuit Fails Badly
* Duplicitous Competitive Keyword Advertising Lawsuits–Fareportal v. LBF (& Vice-Versa)
* Trademark Owners Just Can’t Win Keyword Advertising Cases–EarthCam v. OxBlue
* Want To Know Amazon’s Confidential Settlement Terms For A Keyword Advertising Lawsuit? Merry Christmas!
* Florida Allows Competitive Keyword Advertising By Lawyers
* Another Keyword Advertising Lawsuit Unceremoniously Dismissed–Infostream v. Avid
* Another Keyword Advertising Lawsuit Fails–Allied Interstate v. Kimmel & Silverman
* More Evidence That Competitive Keyword Advertising Benefits Trademark Owners
* Suing Over Keyword Advertising Is A Bad Business Decision For Trademark Owners
* Florida Proposes to Ban Competitive Keyword Advertising by Lawyers
* More Confirmation That Google Has Won the AdWords Trademark Battles Worldwide
* Google’s Search Suggestions Don’t Violate Wisconsin Publicity Rights Law
* Amazon’s Merchandising of Its Search Results Doesn’t Violate Trademark Law
* Buying Keyword Ads on People’s Names Doesn’t Violate Their Publicity Rights
* With Its Australian Court Victory, Google Moves Closer to Legitimizing Keyword Advertising Globally
* Yet Another Ruling That Competitive Keyword Ad Lawsuits Are Stupid–Louisiana Pacific v. James Hardie
* Another Google AdWords Advertiser Defeats Trademark Infringement Lawsuit
* With Rosetta Stone Settlement, Google Gets Closer to Legitimizing Billions of AdWords Revenue
* Google Defeats Trademark Challenge to Its AdWords Service
* Newly Released Consumer Survey Indicates that Legal Concerns About Competitive Keyword Advertising Are Overblown

The post 11th Circuit Rejects Keyword Advertising Liability–Deltona v. NOCO appeared first on Technology & Marketing Law Blog.

Created by ChatGPT Dec. 2025

by guest blogger Kieran McCarthy

I recently described the district court’s decision in the case of Amazon v. Perplexity as “a shockingly poor effort to grapple with CFAA applicability to agentic AI technology.”

The Ninth Circuit appears to have agreed.

This week, the Ninth Circuit panel published its opinion vacating the district court’s preliminary injunction and remanding for further proceedings. Amazon.com Services, LLC v. Perplexity AI, Inc., 2026 WL 2237587 (9th Cir. Aug. 4, 2026).

The panel determined that Amazon was not entitled to a preliminary injunction because it was not likely to succeed on the merits of its CFAA claim. The court concluded that Perplexity did not “access” Amazon’s computers within the meaning of the CFAA, but rather it was the user who accessed Amazon’s computers. The panel also concluded that Amazon was equally unlikely to succeed on the merits of its CDAFA claim for the same reasons.

The panel also concluded that the remaining equitable factors favored Perplexity.

The Court kept its opinion narrow and specifically disclaimed the applicability of this opinion to other facts or other laws related to data access and agentic AI. But this was a nonetheless important step in distinguishing the infamous Power Ventures opinion, at least in the context of agentic AI.

—

I described the facts in detail in my prior write up of the district court’s decision, so I won’t rehash them here.

But unlike at the district court, the Ninth Circuit panel did not ignore the key factual pattern that makes this case so interesting. What’s unique and interesting about this case is that it involves a fundamentally new technology, in the form of Agentic AI, acting on the instructions of end users.

The panel wrote:

Agentic AI is an emerging technology. There is thus little to no existing caselaw directly dealing with how to ascribe responsibility for AI agents like the Assistant, let alone caselaw specifically dealing with agentic AI in the CFAA context. And CFAA cases dealing with more established technologies do not provide a perfect analogue to the case at hand.

Id. at 12.

The panel then went on to distinguish the facts of both Power Ventures and BrandTotal (both cases involving Facebook, ironically enough).

And the key distinguishing fact, according to the panel, was that on the facts presented to the Court, it was not Perplexity that was accessing Amazon’s computers, but rather the end users through their computers.

Under the CFAA’s plain language, Perplexity’s Comet Assistant itself cannot “access” Amazon’s servers.

According to the Court:

However advanced the Assistant currently is, it is a tool, not a person for statutory purposes. See 18 U.S.C. § 921(a)(1) (“The term . . . ‘whoever’ include[s] any individual, corporation, company, association, firm, partnership, society, or joint stock company.”); see also Whoever, Cambridge English Dictionary, [https://perma.cc/YY3TVTJF] (last visited July 16, 2026) (“[T]he person who” (emphasis added)).

Id. at 15.

Since it is the user using the Assistant tool, Perplexity’s not accessing Amazon’s servers in the first place. And the entire CFAA case unwinds after it reaches that conclusion.

The Court further reinforced its conclusion with the rule of lenity (which courts that enforce the CFAA always seem to forget). The Court was concerned that under Amazon’s theory of liability, end users could be exposed to criminal liability for using agents. Given the rapid adoption of this new technology, the Court was concerned about that approach.

But with just as much caution, the Court was equally quick to reiterate what the opinion was not.

We do not establish a new legal regime governing agentic AI. We do not address whether in other contexts, including tort claims, Perplexity can avoid liability for the Assistant’s actions. Our holding here is limited to “access” as contemplated by the CFAA and as applied to the Assistant’s interactions with Amazon.com on the record before us, not the broader landscape surrounding agentic AI.

Id. at 17.

—

The Court’s reasoning was largely identical in the context of the CDAFA, even though, as I noted in the prior district court opinion write up, the CDAFA is broader than the CFAA. Even though the CDAFA is broader, the “focus of the inquiry is still on the person accessing or causing the access.” Id. at 18. And since the panel concluded that it was not Perplexity that accessed Amazon’s servers, but rather end users through their own computers, that was that.

—

Once the panel determined that Amazon was unlikely to succeed on the merits, the district court’s thin and largely circular conclusions on the other equitable factors unraveled quickly.

In the end, the Ninth Circuit panel kept its opinion tight and focused on the primary issue in the case: whether Perplexity’s agentic AI tool was a “person” who accessed a site within the meaning of the CFAA. It is not, and the case has been remanded for further proceedings in light of that conclusion.

The case avoiding sweeping pronouncements and it was not the straight-up revocation of Power Ventures that some might have hoped for. Given the other legal issues presented, Perplexity might not be out of the woods just yet, but it’s fair to say that the Ninth Circuit vacated bad legal precedent and replaced it with a better one. And for that we can be thankful.

* * *

Eric’s Comments

In the copyright module of my Internet Law course, I ask students a simple question: is web browsing infringement and, if so, by whom? I use the Cablevision case to review the question. (In that case, the court held that for a DVR-as-a-service business, the users pressed the button to make the storage copies). The whodunit question blows students’ minds because it’s 2026 and they assume these issues have long been resolved. As this case shows, courts are still unsure who takes the legally significant actions online.

The ruling also brought to mind the Ticketmaster v. RMG case (the 2007 Hannah Montana case), which I still teach today. The facts in that case remain murky to this day, but I always interpreted RMG as handing off its software to its ticket broker customers, who then operated the software to snipe scarce event tickets, but with some ongoing facilitation from RMG (like relaying ticket purchase requests through a phalanx of RMG-associated IP addresses to reduce blockage). Ticketmaster successfully prevailed over RMG in that case on several legal theories, but does this court’s reasoning suggest that Ticketmaster’s redress should come solely from RMG’s customers, not RMG? Or does the RMG case suggest Amazon ought to win against Perplexity, just under other legal theories?

In support of that latter prospect, the opinion invites courts to more closely scrutinize exactly what the providers of agentic AI software do to facilitate their users’ activities. If they cross some undefined and currently invisible line, the software provider will transform into the legally relevant actor. That might harmonize this ruling with the RMG and Cablevision cases, but at the cost of inconsistent judicial outcomes and high defense costs.

As with other whodunit cases, if Perplexity is off the hook, where does that leave Perplexity’s users legally? Could Amazon assert CFAA/502 claims against users, or a range of other legal theories? In a footnote, the court says tersely: “This outcome does not impair Amazon’s ability to regulate access to Amazon.com via private terms of service for its users.”

The users’ legal exposure highlights some challenging policy fault lines of this case–and all online trespass to chattels cases. On the one hand, it would be a bad thing if websites more aggressively erect contract-based putative barriers to access. That creates a potential thicket for ordinary daily activities, and it raises greater risks that individuals will unintentionally trigger significant legal exposure if they don’t research and confirm their permission to visit every service they visit.

On the other hand, Amazon clearly expressed its preferences that it didn’t want Perplexity’s users to access its services through agentic AI, and why shouldn’t the law back up these strong and clear desires? We know that server operators need that prerogative to fend off hostile attacks, but we also know server operators will overclaim any legally backed prerogative they have.

As a result, as with most trespass-to-chattels cases, there are not likely to be any easy answers in this case. There are only significant and potentially problematic policy tradeoffs.

The post Ninth Circuit Lifts Restrictions on Agentic AI Accessing Amazon appeared first on Technology & Marketing Law Blog.

Last month, while sitting at Amsterdam’s Schiphol Airport, a passenger typed www.annefrankmanuscripten.org on her laptop to look up the website at issue in the latest judgment by the Court of Justice of the European Union (CJEU) on geoblocking—the Anne Frank Fonds judgment. The retrieved webpage notified her that “due to copyright considerations,” the content, a scholarly edition of Anne Frank manuscripts, was not available to users connecting from the Netherlands.

Using a VPN service, she connected through a server in Belgium. This time the content webpage appeared, asking her to confirm that she was located in one of the listed “public domain countries.” The page warned her that if she was not located in one of those countries, she was “circumventing protection measures” and possibly “infringing copyrights.”

Had she misrepresented her location and confirmed that she was connecting from Belgium, presumably she could have accessed the content, even though she was in the Netherlands, which is not one of the public domain countries of the publication. The content is still protected by copyright in the Netherlands, where the provider of the scholarly edition has no license to make the content available to the public.

The CJEU judgment in Anne Frank Fonds does not address the liability of the cyber-traveling passenger. Instead, it concerns the liability of other actors in the story—the providers of the content and, in the abstract, a VPN provider.

Given the trajectory of prior CJEU judgments that have discussed geoblocking, and the opinion of the Advocate General in this case, the CJEU’s holdings in Anne Frank Fonds are not surprising. Under EU law, a content provider is not liable for copyright infringement by communicating a work to the public in a country where the work is still protected by copyright and for which the provider has no license, if the provider uses an effective–meaning “state of the art”–geoblocking measure. In such a case, the provider is not communicating to the public in the geoblocked country, even if Internet users can circumvent the geoblocking measure with a VPN or similar service. If the geoblocking measure is not effective and therefore a copyright-infringing communication to the public does take place in the country where the work is still protected by copyright, that communication is attributable to the provider of the content and not to the provider of the VPN or similar service.

Several aspects of the Anne Frank Fonds judgment deserve thorough analysis. At the global level, the judgment might raise concerns that it signals the end of a free and open Internet, legitimizes the balkanization of the Internet, and marks a new era of territorialization of the Internet. But none of these trends are new or surprising. In fact, some commentators might argue the opposite. By clarifying how actors on the Internet may lawfully provide a work to users only in countries where the work is in the public domain or for which the actors hold a license, the judgment advances legal certainty for actors who seek to operate lawfully in cyberspace, thus ensuring that more content becomes available online in general.

Clarity about the ability of actors to geographically limit their conduct online might be an argument against the balkanization of the Internet. If access to content can be effectively regulated by content providers, no government intervention should be necessary to wall off the Internet in individual countries. Even the territorialization of the Internet is not new; the Internet has been subject to gradually increasing territorialization from its origins, and the end of the “Wild West era” of the Internet was inevitable.

Any comprehensive analysis of Anne Frank Fonds should be subject to further debate, but two aspects can be highlighted for now: the establishment of the knowledge standard, and the assessment of the effectiveness of geoblocking measures. Both of these aspects will be crucial for the future of the Internet under the legal regime that the judgment has created.

According to the CJEU, the “obligation to adopt effective technological measures to restrict access” to copyrighted content online falls on “any person who knows or ought reasonably to have known” that a work is protected by copyright in some EU member states, even though the work is in the public domain in other member states (par. 42). In the Anne Frank Fonds case, this knowledge standard presents no issue. The defendants clearly knew that the work was still protected by copyright in the Netherlands, as was confirmed by their deployment of geoblocking measures to prevent access from the Netherlands. But in many other cases, the reasonableness of having knowledge about foreign copyright protection might be debated. Will the expectation of knowledge be the same for corporate content providers, individual influencers, and occasional social media users? Imposition of an unreasonably high standard would translate into uneconomic costs that would deter speech, or at least some speech, on the Internet.

Cost considerations might also affect the standard of legal effectiveness of geoblocking measures. While some costs of doing business on the Internet are reasonable, a requirement that would result in unreasonable costs would negatively affect speech on the Internet. Geoblocking tools are not all created equal; their effectiveness varies. If the law is to rely on geoblocking, minimal technical standards must be set to identify geoblocking tools that meet any legal minimum. In the Anne Frank Fonds judgment, the CJEU confirmed, very sensibly, that a possibility of circumvention does not automatically render geoblocking measures ineffective for legal purposes (par. 51). However, the CJEU left it to the national court to decide whether the deployed measure was effective (par. 48).

The CJEU defined “a geo-blocking measure” as “a process that is aimed at enabling or preventing access to the work published on the website depending on the geographical location of the user in the light of the Internet Protocol address (‘IP address’) which he or she uses to connect to the website” (par. 44). We can only assume, and also hope, that by prefacing the court’s definition with the phrase “[i]n the present case,” the CJEU intended the wording not to be the legal definition of geoblocking measures, because newer geoblocking tools no longer rely solely on IP addresses. If the geoblocking measure deployed by the defendants in Anne Frank Fonds relied solely on IP addresses, the question whether the measure was “state of the art” might be warranted (par. 49).

The post CJEU Judgment on Geoblocking & Standards for Knowledge of Foreign Copyright Laws and Geoblocking Measures (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

In short, California enacted the “Yelp Law” to restrict businesses from trying to stop their consumers from posting online reviews. The statute is divided into two main operative parts. (a)(1) targets TOS provisions that restrict consumer reviews. (a)(2) targets businesses’ efforts to enforce those TOS provisions. A small team of plaintiff lawyers have been cruising the Internet, looking for TOS provisions that they claim are consumer review restrictions, and then asserting (a)(1) violations for those TOS provisions hoping for payoffs. In these enforcements, no consumer has actually been stifled in their remarks (that would support an (a)(2) violation). Worse, the plaintiffs’ lawyers often fail to display basic reading comprehension because their claims target generic and standard TOS provisions that have nothing to do with consumer reviews.

[In this case, the offending TOS provisions said that consumers “agree not to submit content to the website “‘intended to cause commercial harm’” to Peet’s or to use Peet’s trademarks “‘in any manner … that would disparage’ Peet[’s] products or brands.” These are ill-advised TOS provisions that should be rewritten, but they are also clearly not meant to restrict consumers’ abilities to post reviews.]

The Moss decision rejected similar claims because the court concluded (a)(1) had no private right of action. However, that decision was non-precedential. Now, a week later, a different California Appeals Court panel reaches the same conclusion in a precedential opinion, Arterberry v. Peet’s. The end of the Yelp Law drive-by enforcements is getting closer.

The Arterberry opinion summarizes its question and answer:

May a consumer seek monetary penalties against a company for including a contractual provision made illegal under section 1670.8 as part of the terms and conditions on its website, even if the company never threatened to enforce that provision or take any action against the consumer? We hold section 1670.8 outlaws non-disparagement clauses in consumer contracts, but it unambiguously allows a consumer to bring a suit for monetary penalties only when a seller attempts to enforce such a provision or otherwise seeks to penalize a consumer.

The Arterberry opinion itself doesn’t mention the Moss opinion (which was non-precedential, and the opinions were likely drafted in parallel with each other), and the Arterberry opinion claims it is addressing a matter of “first impression” (with acknowledgements of the Shofet and Anderson federal district court opinions, neither of which bind the court, but no acknowledgement of Moss). Despite the parallel rulings, Arterberry follows the same basic logic as the Moss opinion.

The Arterberry opinion engages in a little more depth with the legislative history. The court concludes:

Section 1670.8 applies to everyone, be it a Fortune 500 company or a small family business. If, as the plaintiffs allege, the use of a nondisparagement clause created a cause of action with respect to each California resident who visited a website, with a civil penalty of up to $2,500 for each such resident, then a relatively small business with 10,000 online California customers would face up to $25,000,000 in penalties for using insufficiently precise content moderation and trademark enforcement language in the terms and conditions of its website. The same business would face no more than $5,000 in penalties for actually threatening or seeking to penalize a consumer for posting a negative review. In the more than 400 pages of legislative history that the plaintiffs submitted for our review, we see nothing to suggest the Legislature intended the statute to work this way.

(To be fair, a $5k financial deterrent against suppressing consumer reviews may be too light, just as a $25M penalty for poor TOS drafting would be way too heavy. But the Yelp Law doesn’t rely solely on a private right of action; the AG’s office can enforce it too).

As I mentioned in my prior post, the mere presence of anti-consumer review clauses in TOSes could potentially chill consumers from posting reviews, even if the business never affirmatively asserts that clause. Other laws may redress that concern. And either way, the current batch of (a)(1) enforcements are not the right solution.

I wonder if the unsuccessful plaintiffs’ lawyers will ask the legislature to “fix” the statutory drafting, claiming that the courts have left consumers vulnerable to businesses’ anti-review efforts. It’s the kind of story that some legislators would be sympathetic to–if they don’t do their homework about the abuses already taking place. Even without a legitimate private right of action, plaintiffs’ lawyers have used (a)(1) to cause chaos in court and extract undeserved concessions. We need less of that, not more.

Case Citation: Arterberry v. Peet’s Coffee, Inc., 2026 WL 2185136 (Cal. App. Ct. July 29, 2026)

Selected Blog Posts Regarding 1670.8

• Appeals Court Shuts Down Bogus Private Enforcements of the ‘Yelp Law’–Moss v. GoDaddy
• Catching Up on the Bogus “Yelp Law” Litigation Campaign–Tao v. Uniqlo
• Amazon Must Defend “Yelp Law” Claim–Ramos v. Amazon
• Courts Are Rejecting Attempts to Weaponize Laws That Protect Consumer Reviews
• Businesses Cannot Contractually Ban “Abusive” Consumer Reviews
• California Tells Businesses: Stop Trying To Ban Consumer Reviews (Forbes Cross-Post)

The post Another Court Shuts the Door on “Yelp Law” Drive-By Lawsuits–Arterberry v. Peet’s appeared first on Technology & Marketing Law Blog.

The court accepts Harbor Freight’s claim that the “2024 Cookie Banner was displayed on each page on the Website until the user interacted with it, even if the user had previously visited the Website and interacted with the prior cookie banner.”

In 2025, Harbor Freight added an arbitration clause to the TCU. The TCU also contains a class action waiver.

The named plaintiff, Alba, says he visited the website at least once a year since 2020, including after the arbitration clause was added to the TCU. Alba allegedly selected the “Reject All Cookies” button.

What Terms Apply

The court accepts Harbor Freight’s evidence of its user interface:

Harbor Freight has satisfied its burden of proof and demonstrated that Alba was shown the 2024 Cookie Banner. It is undisputed that Alba visited the Website as recently as October 2025. Harbor Freight’s unrebutted evidence that the 2024 Cookie Banner was shown to all users following October 31, 2024, is therefore sufficient to demonstrate that Alba must have been shown the revised banner during his recent visits to the Website….

Alba did not submit a declaration or any other evidence denying that the Website displayed the 2024 Cookie Banner when he visited it in 2025

Alba pointed to an article that says that normally, in the EU, a website doesn’t redisplay the cookie banner to consumers who have already made a selection. The court says this article doesn’t raise any questions about the activities taking place in the US.

Formation

Turning to formation, the court characterizes the cookie banner as a “sign-in-wrap,” which takes us to the now-familiar Chabolla considerations.

Transaction Context. Favors Alba, because “simply browsing a website is insufficient to put the user on heightened notice to anticipate terms of service.”

Visual Design. The court says the offer notice was reasonably conspicuous:

First, the font size used for the advisory paragraph, hyperlinked Terms and Conditions, and buttons was the same. Second, the advisory paragraph displayed in black text against a white background, whereas the Terms and Conditions and Privacy Policy were each bolded, underlined, and in red font. Thus, the Terms and Conditions “stood out from the surrounding text to indicate it was clickable.” Third, the hyperlink to the Terms and Conditions was directly to the left of the three buttons and contained within the pop-up banner, meaning that a Website user could not click on any of the buttons without also seeing the Terms and Conditions displayed on their screen. Finally, there was nothing else cluttering the cookie banner, and the advisory paragraph expressly notified users that “[b]y clicking ‘Accept All Cookies,’ ‘Reject All Cookies,’ ‘Cookie Settings,’ or continuing to browse our website, you acknowledge and agree to our Terms and Conditions of Use.”

A few things:

• The cookie banner excerpt was presented in isolation, not in the context of the entire page. I find these kinds of excerpts unhelpful and maybe misleading. Is the offer conspicuous when looking at the whole page?
• Even in the excerpt, the font is small. It’s blurry in the screenshot I present above (taken from the court opinion).
• Although there isn’t a ton of text, the consumer would have to wade through the cookie discussions to see that the decision to proceed has implications far beyond cookies.

The court distinguishes Chabolla because, in that case, the offer was below the acceptance button such that someone might not look there (here, the text is to the left of the acceptance button). The court says it doesn’t matter that the offer disclosure was at the end of the paragraph block because the TCU links were “bolded, underlined, and in red font, meaning they stood out even without reading the entire paragraph.” Alba also complained that the links to the TCU and privacy policy were “mashed together,” but the court says consumers would recognize the space between them and, either way, still see the TCU reference.

Assent. Alba didn’t challenge assent separately from the disclosure visbility. But I’m stuck on this. Harbor Freight claimed that taking ANY of the following actions was assent: “clicking ‘Accept All Cookies,’ ‘Reject All Cookies,’ ‘Cookie Settings,’ or continuing to browse our website.” This seems extremely expansive. For example, forming the TCUs by continuing to browse is a browsewrap, not a sign-in-wrap. And if someone clicks “cookie settings,” presumably to investigate the website further, it seems unfair to presume they want to form the contract yet.

Also, I’m willing to bet that a majority of consumers presented with this interface would be shocked to learn that “reject all cookies” meant “accept all terms,” including an arbitration clause in the TCU. Yes, that is technically what the disclosures say, but it requires a lot of mental work to put all of this together. It also raises potentially interesting logic puzzles, like what if the cookie policies’ rules about declined cookies and the TCU terms are in conflict with each other? (Nothing in this case suggested that, but I’m raising the possibilities).

Implications

For another case upholding TOS formation via cookie banners, see LB v. LinkedIn.

While I think jamming Alba with the TCU terms when he declined cookies was a raw deal, I’ll note the plus side: Harbor Freight wisely used the engagement with the cookie banner for more than resolving the cookie policy. If you’re going to force users to click, go for the gusto and get them to agree to the TOS at the same time like Harbor Freight did.

The court orders Alba’s case to arbitration. However, another plaintiff in the case took all relevant actions before the arbitration clause was added to the TCU. That plaintiff’s claims are stayed until the arbitration resolves.

For more on cookie banners, you might be interested in Kate Klonick, Ban Cookie Banners: A Case Study in Tech Regulation. I don’t agree with all of her arguments, but I heartily endorse the article’s bottom line that the EU and other countries should reconsider cookie banner mandates (and, in my opinion, all other government-mandated interstitials that break the web’s “click-and-go” paradigm).

Case Citation: Alba v. Harbor Freight Tools USA, Inc., 2026 WL 2161637 (N.D. Cal. Juy 27, 2026)

The post When You Reject Cookies, You Might Be Agreeing to Arbitration–Alba v. Harbor Freight appeared first on Technology & Marketing Law Blog.

If you’re an academic and would like a free evaluation PDF, email me. I can also share my course slide deck (over 400 slides). You might also check out (1) my Internet Law course page, which includes 29 years of syllabi, old exams, and sample answers, (2) my article on “Teaching Cyberlaw,” (3) my blog post on teaching Internet Law as an online-only course, and (4) my Canvas modules for my Fall 2021 online-only course (I can email you my most current modules on request).

* * *

Last year, I made multiple big changes to the casebook. In contrast, this year, I only made one big change: I added the Cox v. Sony opinion and deleted Grokster and the copyright liability excerpt from the Frontier case. Due to the Cox opinion, I rewrote a lot of the copyright chapter.

Other changes of note: I added a new “Short Primer on Tracking Technologies” (an excerpt from Doe v. Adventist Health System/West). I added new notes about trespass to chattels and the Coase Theorem, the SAD Scheme, the Social Media Addiction cases, and more. I also rewrote the section about geolocation technologies.

On top of all of that, as usual, I made hundreds of edits throughout the book.

* * *

Over the years, I’ve posted a number of book excerpts, including:

• The entire chapter on online contracts. The 2025 version is available. The chapter would be a helpful supplement to courses wishing to cover online contract formation.
• Primer on CCPA/CPRA (partially deprecated)
• Primer on FOSTA
• Primer on the Copyright Claims Board (CCB) (now deleted)
• Primer on Section 230
• Excerpt on right to be forgotten
• Excerpt on CFAA/Nosal/Power Ventures (now deleted)
• Excerpt on transborder content enforcement
• Excerpt on Brazil’s Marco Civil (now deleted)
• Excerpt on notes about UMG v. Shelter Capital

(Some of these excerpts are now outdated, but every year I update everything that’s still in the book).

As always, I invite your comments and questions.

* * *

Table of Contents

I. What is the Internet? Who Regulates It?

Overview
Noah v. AOL (E.D. Va.)
Determining the Geographic Location of Internet-Connected Devices

II. Jurisdiction

Evaluating Personal Jurisdiction
Briskin v. Shopify (9th Cir. en banc)

III. Contracts

Chabolla v. ClassPass (9th Cir.)
Godun v. JustAnswer (9th Cir.)
Canteen v. Charlotte Metro Credit Union (N.C. Sup. Ct.)

IV. Trespass/Computer Fraud & Abuse Act

Review: the Computer Fraud & Abuse Act, 18 U.S.C. §1030 [http://www.law.cornell.edu/uscode/text/18/1030], and California Penal Code §502 [https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=502.&lawCode=PEN]

Overview of Trespass to Chattels Doctrines
X v. Bright Data (N.D. Cal.)

V. Copyright

Copyright Basics (Copyright Office Circular 1)
Note About Fair Use
Griner v. King (8th Cir.)
Cartoon Network v. CSC (2d Cir.)
Cox v. Sony (Sup. Ct.)

Secondary Liability
Review: 17 U.S.C. §512 [http://www.copyright.gov/title17/92chap5.html#512]
Overview of Section 512(c)
UMG v. Shelter Capital (9th Cir. revised opinion)

Recap
Ticketmaster v. RMG

VI. Trademarks and Domain Names

Review: 15 U.S.C. §1114 [http://www.law.cornell.edu/uscode/text/15/1114], 15 U.S.C. §1125 [http://www.law.cornell.edu/uscode/text/15/1125], and 15 U.S.C. §8131 [http://www.law.cornell.edu/uscode/text/15/8131]

Trademark FAQs
Trademark Glossary

Domain Names and Metatags
Review: ICANN Uniform Domain Name Dispute Resolution Policy [https://www.icann.org/resources/pages/policy-2024-02-21-en] and Rules for Uniform Domain Name Dispute Resolution Policy [https://www.icann.org/resources/pages/udrp-rules-2024-02-21-en]

Lamparello v. Falwell (4th Cir.)
Promatek v. Equitrac (7th Cir.) Original Order and Revision

Search Engines
Review: Google’s Trademark Policy [https://support.google.com/adspolicy/answer/6118]

Lerner & Rowe v. Brown Engstrand & Shely (9th Cir.)

Secondary Trademark Liability
Tiffany v. eBay (2d Cir.)

VII. Content Regulation and Child Safety

Pornography Glossary
Moody v. NetChoice (U.S. Sup. Ct.)
A Note on Congress’ Early Regulation of Online Pornography
Free Speech Coalition v. Paxton (U.S. Sup. Ct.)

VIII. Defamation and Information Torts

Bauer v. Brinkman (Iowa Sup. Ct.)
47 U.S.C. §230
An Introduction to Section 230
A Note About FOSTA
Zeran v. America Online (4th Cir.)
Lemmon v. Snap (9th Cir.)
A Note on the Take It Down Act
Twitter v. Taamneh (U.S. Sup. Ct.)
Top Myths About Content Moderation
Section 230 and Foreign Liability for Third-Party Content

IX. Privacy

Review: 16 C.F.R. Part 312 [https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-312]

Excerpts from 16 C.F.R. Part 312, the Children’s Online Privacy Protection Act’s Regulations
Overview of the E.U.’s General Data Protection Regulation (GDPR) and State Consumer Privacy Laws
Short Primer on Tracking Technologies
In re. Pharmatrak (1st Cir.)

X. Spam

Review: CAN-SPAM Act of 2003 [http://www.gpo.gov/fdsys/pkg/PLAW-108publ187/pdf/PLAW-108publ187.pdf] and 16 C.F.R. Part 316 [https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-316]

XI. Social Media

People v. Lopez (Cal. App. Ct.)
Moreno v. Hanford Sentinel (Cal. App. Ct.)

REVIEW QUESTION ANSWERS

The post Announcing the 2026 Edition of My Internet Law Casebook appeared first on Technology & Marketing Law Blog.

Created by ChatGPT May 2026

In a prior post, I surveyed the rates at which consumers do not complete online age authentication processes, what I call the “balk” rate. There is no single canonical balk rate. It varies by destination behind the authentication wall, the method of authentication, demographics, and many other factors.

In my prior post, I mentioned a study from a mostly Carnegie Mellon team. I had seen a summary of the study, but the full study has now been posted. It’s worth digging into the details a little deeper.

Balk Rates by Modality

In the context of trying to complete the academic study, this chart summarizes the study participants’ balk rates by authentication modality:

Note 1: “checkbox” is self-attestation. That’s not credibly considered “authentication.”

Note 2: the email option said the process “analyzes the email’s registration source, associated employer information, and linked financial activities such as mortgages, credit cards, educational records, and consumer behavior patterns.” Though data mining sounds scary, the actual mechanics were vague and required no further effort from the consumer. This rarely will be a realistic option.

If we remove the self-attestation and the incompletely described email review options, consumers balk rates were a minimum of 48%. Study participants were trying to participate in an academic study, not complete a mission-critical life task, but if actual balk rates come anywhere close to 48%, it will completely upend the current Internet.

Efficacy of Balk Rates

The researchers also asked study participants to assess the likely efficacy of the various authentication methods. As you can see, consumers do not regard any of the techniques as particularly effective:

One participant quipped: “Chat gpt provide me an over 18 CA drivers license.”

As a bonus, the researchers said that only 0.86% of the study participants checked the study’s privacy policy. ¯\_(ツ)_/¯

Blog Posts on Segregate-and-Suppress Obligations

• Fifth Circuit Keeps Doing Fifth Circuit Things –SEAT v. Paxton
• 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 More Data on Online Age Authentication Balk Rates appeared first on Technology & Marketing Law Blog.

(a)(1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.

(a)(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section.

These laws seek to foster consumer reviews by stopping businesses from contractually restricting such reviews. The same principle animates the Consumer Review Fairness Act.

While pro-consumer review laws are good policy, California dubiously attached a private right of action to 1670.8. In its wake, a small group of lawyers have initiated a spate of bogus lawsuits. The lawyers overread businesses’ TOSes, twisting ordinary TOS provisions into putative restrictions on consumer reviews. Enforcement then becomes basically point-and-click. The lawyers search for the targeted TOS provision and then sue the associated business without showing any harm to any consumer. At that point, it becomes a numbers game: file enough lawsuits to cash in from quick but undeserved settlements.

The California appeals court ruling rejects this litigation scheme. The court says 1670.8’s private right of action only applies to (a)(2), not (a)(1). This distinction requires the lawyers to have actual gagged consumers to proceed. Virtual drive-by litigation based solely on TOS language, without more, won’t cut it.

The panel reaches this conclusion because only (a)(2) contains the “it shall be unlawful” grammar that seemingly triggers penalties:

The differences between the two subdivisions permit a reasonable inference that the Legislature intended for subdivision (a)(1) to operate as a shield and for subdivision (a)(2) to provide the consumer with a sword when a seller threatens or takes action to enforce a waiver to stifle consumer speech.

On this point, the court sides with the Shofet case and ignores the Anderson case that reached the opposite conclusion.

The “shield” reference is confusing. A shield for whom, and against what? Later, the court says that TOS provisions that violate (a)(1) are unenforceable. However, that seems to render (a)(1) superfluous. If the legislature attaches a penalty to enforcing the TOS provision, doesn’t that penalty also simultaneously render the TOS provision unenforceable, at least implicitly?

This opinion isn’t precedential, so it is definitely not the final word on the matter. However, it’s also clear that this litigation genre is doomed, one way or another. The sooner, the better.

Even if (a)(1) doesn’t have a private right of action, businesses should still scrub their TOSes for any provisions that might be construed as restrictions on consumer reviews. Among other problems, enforcing those provisions could still trigger the private right of action.

Case Citation: Moss v. GoDaddy.com, Inc., 2026 WL 2122990 (Cal. App. Ct. July 23, 2026)

Selected Blog Posts Regarding 1670.8

• Catching Up on the Bogus “Yelp Law” Litigation Campaign–Tao v. Uniqlo
• Amazon Must Defend “Yelp Law” Claim–Ramos v. Amazon
• Courts Are Rejecting Attempts to Weaponize Laws That Protect Consumer Reviews
• Businesses Cannot Contractually Ban “Abusive” Consumer Reviews
• California Tells Businesses: Stop Trying To Ban Consumer Reviews (Forbes Cross-Post)

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