Technology & Marketing Law Blog

Alex Berenson’s Deplatforming Lawsuit Fails in the Second Circuit–Berenson v. Gottlieb

Eric Goldman — Sat, 24 Oct 2026 16:47:23 +0000

Generated by ChatGPT Dec. 2025

Alex Berenson is a one-time N.Y. Times reporter whose life appears to have taken an unfortunate turn in the wake of MAGA and COVID. According to his Wikipedia entry:

During the coronavirus pandemic, Berenson appeared frequently in American right-wing media, spreading false claims about COVID-19 and its vaccines. He spent much of the pandemic arguing that its seriousness was overblown. Once the COVID-19 vaccines became available, he spread misinformation about the safety and effectiveness of the vaccines.

(A reminder that 1.2M Americans died due to COVID).

Berenson aggregated over 200k followers at Twitter who were exposed to his hot takes on COVID and vaccines. That put his account at risk as Twitter cracked down on misinformation and denialism:

In May 2020, Twitter announced that it may append labels or warning messages to tweets related to COVID-19 misinformation. Berenson tweeted that he was “concern[ed] about what the new rules might mean for free speech on [Twitter].” In response, Twitter’s Vice President of Global Communications Brandon Borrman contacted Berenson to discuss the new policy. In December 2020, Twitter announced a new policy with respect to COVID-19 vaccine misinformation, stating that it would start to “remove Tweets which advance harmful or misleading narratives about COVID-19 vaccinations.” Berenson contacted Borrman, “looking for assurances that Twitter would continue to allow his reporting on COVID-19 vaccines.” Borrman allegedly responded that the “points [Berenson was] raising should not be an issue at all,” and that Berenson should reach out if he “r[an] into any issues.”

On March 1, 2021, Twitter announced a “five-strike policy” to combat COVID-19 misinformation. Accounts that received strikes were subject to increasing levels of discipline: the first strike resulted in a warning, the second and third strikes each in a 12-hour account lock, the fourth strike in a 7-day account lock, and the fifth or successive strike in permanent suspension. The policy provided that, if a user “believe[s] that [their] account was locked or suspended in error, [the user] can submit an appeal.”

The next day, Berenson spoke with Borrman, who allegedly reported that “[Berenson’s] name has never come up in the discussions around these policies,” and that Borrman would “try to ensure [that Berenson would be] given a heads up before an action is taken, but [that Borrman was] not always made aware of them before they’re executed.”…

Berenson received strikes from Twitter in March, July, and August 2021. His Twitter account was permanently suspended with the fifth strike on August 28, 2021.

Berenson “alleges that former President Joseph R. Biden, as well as other individuals in the Biden Administration, conspired with executives at Pfizer, Inc. to pressure Twitter to suspend Berenson’s Twitter account, because of his views with respect to the COVID-19 vaccines.” He sued various US government officials for roles in the alleged censorship. In 2025, the district court dismissed several of the defendants. The Second Circuit, in a memo opinion, affirms that ruling.

Section 1985(3)

Berenson asserts that the relevant class here is a “class of Americans who had chosen not to receive a COVID-19 vaccine, a class of which [ ] Berenson is apart [sic].” The district court correctly held that Berenson’s proposed class does not constitute a class for Section 1985(3) purposes. Instead, this is precisely the kind of class that the Supreme Court cautioned against in Bray—a class composed of individuals who share a desire to engage in conduct, i.e., to forgo COVID-19 vaccination, that the defendants allegedly disfavor. To the extent Berenson suggests that the class falls within the ambit of Section 1985 because it “includes a disproportionate number of African-Americans, political conservatives, and evangelical Christians,” we are unpersuaded….

the FAC is replete with allegations that Berenson, and not a general class of unvaccinated Americans, was specifically targeted….Berenson’s Section 1985 claim must be dismissed because he failed to plausibly allege “that the defendants acted with class-based, invidiously discriminatory animus.”

Tortious Interference

Twitter’s five-strike policy and Borrman’s alleged remarks, whether considered separately or together, are not “wholly incompatible” with the Terms of Service. The relevant provision of the Terms of Service is located in the section entitled “Ending These Terms,” and provides the means by which a user may terminate the agreement…the provision makes clear that suspension or termination of an account is not limited to violations of that policy….

[Borrman’s] remarks suggest at most that Borrman would attempt to notify Berenson of action taken against him—not that no action would be taken against Berenson or that Berenson would necessarily receive advance notice of any action.

In 2022, Berenson’s deplatforming claim against Twitter partly survived a motion to dismiss. My blog post on that ruling. That ruling became a bit of a cause celebre in MAGA circles as proof that (1) Berenson was censored, and (2) Twitter could be held liabile. The Second Circuit rejects that ruling:

Berenson relies heavily on Berenson v. Twitter, Inc., No. C 21-09818 (WHA), 2022 WL 1289049 (N.D. Cal. Apr. 29, 2022), a decision in a case Berenson initiated against Twitter in December 2021. There, the district court granted in part and denied in part Twitter’s motion to dismiss, holding that the five-strike policy and Borrman’s “specific and direct assurances to [Berenson] regarding his posts pursuant to that policy” “amount[ed] to a modification of the [Terms of Service]” and that Berenson had plausibly alleged that “Twitter’s conduct … modified its contract with [him] and then breached that contract by failing to abide by its own five-strike policy and its specific commitments set forth through [Borrman].” We find that analysis unpersuasive

It’s a reminder that plaintiffs have virtually no chance of successfully suing Internet services for their account termination/content removal decisions. Even one of the few preliminary “wins” by plaintiffs is “unpersuasive” when reviewed by an (unrelated) appellate court.

The litigation over Biden-era COVID-related “censorship” feels quaint in light of the ongoing, relentless, and far more egregious censorship taking place daily in the Trump 2.0 administration. If anyone still wants to make censorship their cause celebre, it would make sense to start with the censorship taking place RIGHT NOW.

Case Citation: Berenson v. Gottlieb, 2026 WL 3135334 (2d Cir. Oct. 20, 2026)

Selected Jawboning Posts

The post Alex Berenson’s Deplatforming Lawsuit Fails in the Second Circuit–Berenson v. Gottlieb appeared first on Technology & Marketing Law Blog.

Four Justices, One Mega-Publisher, and a Supreme Court Copyright Debacle (Guest Blog Post)

Eric Goldman — Fri, 23 Oct 2026 13:31:53 +0000

by Prof. Guy Rub, Temple University Beasley School of Law

What do Amy Coney Barrett and Ketanji Brown Jackson do for a living?

The obvious answer is that they are Associate Justices of the United States Supreme Court. That is presumably how they spend most of their working hours. But if we look at their income rather than their job descriptions, the answer becomes less obvious.

In 2025, an Associate Justice earned an annual salary of $303,600. That same year, Justice Jackson received approximately $1.2 million for writing her memoir, while Justice Barrett received nearly $850,000 for hers. Justice Neil Gorsuch earned approximately $300,000 from books, and Justice Sonia Sotomayor, although earning considerably less that year, has collected more than $4 million in book advances and royalties during her time on the Court. By the end of 2025, Jackson’s cumulative book earnings for her memoir have surpassed $4 million. Collectively, the Justices have earned more than $13 million from books since joining the Court.

Apparently, for some Justices, deciding cases is not their most lucrative occupation. Writing books is.

While court ethics rules, including the Supreme Court’s own Code of Conduct, cap outside income at just over $30,000, copyright royalties and book advances are an exception. There is no ceiling whatsoever on how much a Justice can collect from a publisher.

Some might think that it is self-evident that a government official—let alone a Supreme Court Justice—generating most of their income, millions of dollars, from a private conglomerate is obviously a serious problem. But if that doesn’t immediately trouble you, perhaps the extraordinary debacle that unfolded at the Supreme Court this week will.

The Fifth Circuit’s Copyright Adventure

On January 12, 2026, the Fifth Circuit decided Vetter v. Resnik. This trainwreck of an opinion has already been discussed at great length, including on this blog, so I can be brief.

In Vetter, the Fifth Circuit held that when an author terminates a copyright grant under the U.S. Copyright Act, that termination can recapture copyright interests worldwide. To reach that surprising conclusion, the Fifth Circuit effectively treated foreign copyrights as mere extensions of U.S. copyright, rather than as independent rights arising under the copyright laws of other countries.

That was quite a move. Original, certainly. But it also potentially upends decades of understanding about copyright territoriality and the relationship between domestic termination rights and foreign copyright systems.

There is no need to mince words. The decision seems flatly wrong. It has been heavily criticized by many, including at length by Professor Tyler Ochoa on this very blog (and by me in a forthcoming article).

A Copyright Rescue Mission Goes Shockingly Wrong

Fortunately, the Supreme Court exists to resolve exactly this sort of problem. And in recent years it has shown a certain willingness to rein in the Fifth Circuit’s, shall we say, “creativity.”

There was, however, a practical obstacle. The original losing parties, Robert Resnik and his music publishing business, presumably had little incentive to pursue expensive Supreme Court litigation. Understandably so. The foreign rights associated with one relatively old song might not justify the cost of further litigation, even if the resulting precedent has significant industry-wide implications.

But then the music industry came to the rescue. Or so it seemed.

After the Fifth Circuit decision, the four largest music publishers in the world—Sony, Universal, Warner, and BMG—acquired the disputed copyright interest from Resnik and substituted themselves as defendants. They retained Paul Clement, one of the country’s most prominent Supreme Court advocates, and petitioned the Court to review the decision.

The petition attracted five amicus briefs, including submissions from the Motion Picture Association, the RIAA, international entertainment industry groups, and 20 intellectual property law professors (myself included), led by Professor Ochoa.

The petition was fully briefed at the certiorari stage, including an opposition and reply. This was a serious, coordinated, presumably expensive industry effort to obtain Supreme Court review.

And then came an entirely foreseeable problem. One of the four petitioners was BMG. Unfortunately, BMG belongs to the same corporate family as Penguin Random House, the book publisher of four sitting Supreme Court Justices: Barrett, Gorsuch, Jackson, and Sotomayor.

One hardly needs an elaborate theory of judicial ethics to recognize the potential recusal problem. What makes the industry’s choice particularly baffling is that BMG’s participation was hardly indispensable to assembling a formidable coalition of music publishers. Moreover, this was not an unprecedented problem. In May 2025, the Supreme Court confronted a similar situation in Baker v. Coates, an obscure pro se copyright infringement case involving allegations that Ta-Nehisi Coates and others had copied a writer’s work. There, presumably because Penguin Random House’s parent company was among the defendants, the same four Justices (together with Justice Alito, although probably for different reasons) recused themselves.

But a Supreme Court case cannot handle so many recusals. Under 28 U.S.C. § 1, six Justices are required for a Supreme Court quorum. Thus, in Baker, the Supreme Court could not consider the cert petition on its merits.

The exact same thing—only in a much more meaningful dispute—happened here. The same four Justices who have turned Penguin Random House into an extremely generous source of personal income—Barrett, Gorsuch, Jackson, and Sotomayor—recused themselves. Without a quorum, on October 19, 2026, the Supreme Court disposed of the publishers’ petition in Vetter.

Immediate Implications on Cross-Border Licenses

While this is a rather stunning turn of events, the fallout from this particular episode may prove easier to address than the deeper institutional problem it exposes.

Losing a certiorari petition under such circumstances is an almost laughable blunder. Four massive, sophisticated companies inserted themselves into a dispute, recruited a top Supreme Court litigator, assembled a coalition of amici, and spent considerable resources pursuing review. Yet in doing so, they also created the recusal problem that doomed their efforts. We don’t see this kind of ball-dropping at this level every day.

For now, Vetter remains binding within the Fifth Circuit, but other courts need not follow it. There is already real tension between its reasoning and Second Circuit case law. Yet, the decision potentially casts doubt on the ownership of foreign rights under a large number of existing copyright agreements. And because copyright termination rights become exercisable on a rolling basis, that uncertainty is not confined to any fixed set of agreements. While cross-border copyright termination litigation has historically been uncommon, the resulting uncertainty may still complicate licensing and other transactions and generate further disputes.

It is nevertheless quite possible that the Supreme Court will eventually get another opportunity to clean up this mess. And hopefully, future litigants will verify that nobody on their team belongs to the same corporate empire that has been paying Supreme Court Justices millions of dollars for their literary side gigs.

That is the relatively straightforward part of this story. But the more troubling implications concern the Supreme Court’s ability to adjudicate copyright disputes generally.

The Supreme Court Has a Publishing Problem

Consider Penguin Random House itself.

This is not some small publisher that happens to have multimillion-dollar contracts with several Supreme Court Justices. It is the world’s largest trade book publishing group, with a vast catalog of copyrighted works. Its parent corporation, Bertelsmann, has substantial interests throughout the media and entertainment industries. Its sister company, BMG, is one of the world’s largest music companies, representing millions of musical compositions.

These businesses are not peripheral participants in the copyright ecosystem. They are among its most important commercial actors.

And, as you might expect, Vetter is not the only copyright litigation involving the Bertelsmann companies. Not even close. And the stakes in some of those other cases are much higher.

Consider just one issue: AI training. In March 2026, BMG sued Anthropic in California, alleging that hundreds of its copyrighted song lyrics had been unlawfully used to train generative AI systems. Penguin Random House authors have also played prominent roles in AI-training litigation. Andrea Bartz, the lead plaintiff in the landmark Bartz v. Anthropic case, is a Penguin Random House author (and the company itself was entitled to claim a share of the gigantic $1.5 billion settlement in this case). So are John Grisham, George R. R. Martin, and Jodi Picoult (and many others)—all named plaintiffs in the pending, massive In re OpenAI litigation in the Southern District of New York.

So, it is not hard to imagine important copyright litigation, possibly dealing with AI training, involving Penguin Random House or BMG reaching the Supreme Court. What happens then? If the four Justices recuse themselves, as they did in Vetter, the Court will again lack a quorum. We would be left with the extraordinary situation where some of the country’s most important copyright disputes cannot receive Supreme Court review because too many Justices have lucrative commercial relationships with a sprawling media group.

That alone is a serious institutional problem.

But the difficulty extends much further than that. What if another AI-training case, even one that does not involve BMG or Penguin Random House or even their authors, reaches the Supreme Court? Presumably, those four Justices would not recuse themselves.

Yet such a case will probably require the Court to address many core questions—such as the transformative nature of AI training, the importance of training licenses, and the validity of the market dilution theory. These questions could have enormous consequences for all AI-training cases and could massively affect Penguin Random House and BMG.

So, we arrive at an uncomfortable situation: the Justices may be unable to hear cases directly involving their publisher but remain free to decide comparable cases that could substantially affect the same publisher’s commercial interests.

Of course, we should not take this argument to an absurd extreme. Judges routinely decide cases that have some indirect effect on industries in which they have some financial interests. But surely there is a difference between having an incidental financial interest in an industry and receiving millions of dollars from a private company whose business may be substantially affected by the legal rules one is asked to announce.

And this brings us to the deeper problem: the legitimacy of the Court itself.

When Copyright’s Judges Are Copyright’s Beneficiaries

The problem is not merely that four Justices have lucrative business relationships with one publishing behemoth. It’s that they’ve become multimillion-dollar beneficiaries of the very copyright system they’re supposed to impartially adjudicate.

As we know, copyright law is not simply a mechanism for ensuring that authors and publishers receive as much money as possible. Instead, as the Supreme Court itself noted, it “reflects a balance of competing claims upon the public interest.”

When Justices receive millions of dollars from exploiting their own copyrighted works, they become financially invested in one side of that broader policy landscape. Even if it doesn’t technically require them to recuse themselves, the appearance problem is glaring. Those Justices collect millions of dollars under contracts with a specific company whose interests frequently come before federal courts.

At some point, the magnitude changes the nature of the relationship. A modest royalty check looks like incidental income from intellectual activity. A multimillion-dollar book deal looks like a major commercial relationship. And it is perfectly reasonable for the public to wonder whether those relationships matter.

Consider, for example, Justice Sonia Sotomayor.

In my view, Sotomayor is an exceptional, important, and brilliant Justice, bringing a distinctive voice and perspective that the Court otherwise might lack. She is also arguably the most experienced of the sitting Justices in copyright law, having practiced intellectual property law before serving on the Southern District of New York and the Second Circuit.

For many years on the Supreme Court, she did not author its major copyright opinions. More recently, however, she wrote the majority opinion in Andy Warhol Foundation v. Goldsmith and a concurrence in Cox Communications v. Sony Music Entertainment. In both, she advanced positions relatively protective of copyright owners. I actually do not necessarily disagree with her. I supported the result in Warhol, although I found its reasoning problematic. And I was very sympathetic to her analysis in Cox.

I’m obviously not suggesting that her book income influenced either opinion. But why should actual corruption be the standard? As noted, since joining the Court, Sotomayor has received more than $4 million in book income from Penguin Random House and its predecessor companies. During that time, she has published multiple books with the publisher. She continues to participate in promotional events for her books, actively supported and publicized by Penguin Random House. This is an ongoing, meaningful business relationship, involving significant labor and significant sums of money, between a prominent Justice and the largest trade book publisher in the U.S. and in the world. During that time, Sotomayor has authored and joined major opinions addressing the scope of copyright protection, including questions with obvious economic implications for copyright owners and their publishers.

Isn’t there something deeply uncomfortable about this arrangement, even if everything is entirely lawful?

This is fundamentally a question of public confidence. Judicial legitimacy requires more than the absence of demonstrable bribery or misconduct. It requires that the public have good reason to believe that cases are being decided independently, without significant financial relationships casting doubt on the process. The appearance of impropriety, after all, is as important as the actual commission of improper acts when it comes to legitimacy.

And to state the obvious: No, none of this is intended to diminish the serious ethics controversies involving Justices Thomas and Alito, including the revelations about undisclosed luxury travel and questions about recusal. Those controversies deserve sustained scrutiny in their own right. Pointing to the problems created by the Justices’ publishing relationships is not an excuse for anyone else’s actions. The Supreme Court seems remarkably capable of having more than one ethics problem at the same time.

In fact, maybe that’s what makes this situation so troubling. Unlike some of the other controversies, the publishing arrangements are largely out in the open. Everything is seemingly above-board.

And yet four Justices have just been unable to participate in a significant copyright case because of their connections to a publishing conglomerate. Meanwhile, those same relationships may raise legitimate concerns about the appearance of impartiality when the Justices do participate in other copyright disputes.

Should Book Income Get a Free Pass?

The Vetter debacle should be an opportunity to reconsider the Justices’ relationships with commercial publishers, the rules governing book income, and the limits of recusal as a solution. In particular, and while I do not pretend to offer a comprehensive framework for reform here, I believe it is quite difficult to continue and defend an ethics regime that limits most forms of outside income while allowing Justices to receive unlimited advances and royalties from commercial publishers.

Treating these payments as merely passive returns on existing intellectual property is something of a fiction. We are talking about enormous sums paid for books that Justices write and promote while on the bench, whose commercial value is tied to the judicial offices they hold. In substance, how is this so different from teaching, which Justices routinely do, but for which their compensation is subject to strict limits? If anything, teaching generally poses fewer concerns about conflicts of interest. And considering that those limits have not prevented Justices from teaching, we should not assume that similar limits would prevent them from writing.

We are entitled to a Court that can resolve important copyright disputes. And we are entitled to a Court whose decisions carry legitimacy, without reasonable doubts arising from its members’ multimillion-dollar relationships with businesses that stand to benefit or lose from those decisions.

The post Four Justices, One Mega-Publisher, and a Supreme Court Copyright Debacle (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

Call for Papers/Participation, Internet Law Works-in-Progress Conference, SCU, March 6, 2027

Eric Goldman — Tue, 20 Oct 2026 15:40:01 +0000

We invite your in-person participation in the 2027 Internet Law Works-in-Progress conference, Law of the Bronco edition, to be held at Santa Clara University School of Law, Santa Clara, California on March 6, 2027.

The conference enables Internet law scholars from around the globe to receive feedback on their in-progress research from their academic peers. More background about the series. We broadly construe the scope of topics that fit within the Internet Law umbrella, and we welcome presentations of research projects at stages ranging from embryonic to unfinished drafts (so long as the draft would still benefit from peer feedback). We also welcome non-presenting discussants.

This year, the conference theme is the “Law of the Bronco,” in recognition of the Chinese Year of the Fire Horse, the 30th anniversary of Judge Easterbrook’s seminal “Cyberspace and the Law of the Horse” article, and the fact that Santa Clara University’s mascot is a bronco. The conference will have several equine-themed elements.

How to Participate

If you would like to participate, email Eric Goldman (egoldman@gmail.com) the following information before the priority deadline of November 18, 2026, noon Pacific time:

* your name, email address, and institutional affiliation
* If you want to present a project: the title of your paper/project and a short abstract (preferably as a PDF that we can post to the event repository)

Please use “2027 Internet Law WIP Request to Participate” as the email subject line.

We expect to respond to participation requests by November 25, 2026. We will consider participation requests received after the priority deadline on a space-available basis.

There is no conference participation fee, but all participants are responsible for their own travel and lodging expenses. There are no publication obligations associated with presenting at the conference. Additional details, including travel and hotel information, soon will be available at the conference web page.

Game Night

Game night is an integral part of the conference experience, and attendees should plan their travel schedules so that they can fully enjoy the festivities. This year, game night will include an equine-themed activity that you will not want to miss, plus many board game options.

More Information

Contact Eric Goldman at egoldman@gmail.com with any questions or comments. We look forward to seeing you in Santa Clara!

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Marketing a “California Ethos” Doesn’t Support a California Publicity Rights Lawsuit–Boyden v. Hyundai

Eric Goldman — Mon, 19 Oct 2026 17:10:11 +0000

Damian B Oh, CC BY-SA 4.0 , via Wikimedia Commons

Robert (Bobbie) “Boyden is a skateboarding legend—known professionally by the nickname Casper—who is credited with having originated, in the 1970s, a skateboarding trick that came to be known as the Casper flip.” You can watch a video demonstrating the move.

Boyden claims that the Hyundai Casper SUV violates his California statutory publicity rights. But his arguments to link the Korean SUV to California were too gnarly, so the case crashes out instead.

* * *

Hyundai introduced a declaration explaining how it landed on this brand name:

the brand strategy team believed the name ‘Casper’ evoked youthful energy as it conjured up images of the child-like cartoon ghost and skateboarding tricks. The name also aligned with [HMC]’s other vehicles since [HMC] often names cars after geographic locations.”…

“As [HMC]’s first mini-SUV, [the Casper SUV] ‘flips’ people’s expectation that the car will be small and weak, when, in fact, it is small and sturdy. [In addition, HMC] ‘flips’ its conventional sales strategy by introducing Casper
as the first car to be sold [exclusively] online.

[Perhaps the IP owners of Casper the Friendly Ghost have stronger legal claims than Boyden does? However, because the ghost is so friendly, it doesn’t haunt the judicial system with bogus lawsuits. Also, allegedly Hyundai didn’t promote this linkage “because of ghosts’ association with death.”].

A few problems with this case should already be obvious:

First, the whole “flip” analogy was subtle. You have to do a lot of cognitive work to make the association they were thinking about. Even when Hyundai explains it, the consumer has to know the Casper Flip by name and then discard the skateboarding concept to extract the “flip” portion as a metaphor for SUV redesigns. I’m sure it made more sense in the brand team’s brainstorming room than when I read it in a court opinion.

Second, Casper made a point of how the “Casper” label has been extended to several other skateboarding moves. There isn’t a clear notion of genericide in publicity rights law. Still, it made me wonder if a name becomes a generic descriptor in a field, can the titular person still exercise control over it?

Third, Casper is the name of a city in Wyoming; and the homophone community of Caspar, California (notice the different spelling) on the Mendocino Coast is a first-rate tourist destination (my wife and I spend a lot of time there). A company can make a geographic reference in its brand without violating anyone’s publicity rights, even if people share the same name.

Fourth, the SUV targeted the South Korean market. It’s not been approved for the North American market. So Hyundai isn’t actually promoting the Casper brand in the US or California.

* * *

That last point highlights a key question: how is this case tied to California? The plaintiff team invested a lot of resources trying to connect the dots, including several “expert” reports.

One “expert” claimed that Hyundai can be sued in California because the Casper SUV marketing invoked a “California ethos”:

“the repeated use of palm trees, beaches, skateboards, and California fashion trends” in HMC marketing materials was “not an accident or something left solely to a marketing agency’s discretion,” but instead was the result of “a series of deliberate design and strategy choices meant to appeal to a specific group of consumers that have a particular affinity—in this case, for California.”

(There are so many songs celebrating the California lifestyle, but this is the one that kept running through my head).

Another “expert” took this angle (emphasis added):

“[T]he Roblox website allowed users to add features to the Casper, do a virtual test drive, and purchase the vehicle through a link on that website. Thus, while it is unclear whether the moment of purchase took place on California servers, it is clear that California infrastructure was crucial to the purchasing process. Customers traveled on a digital highway into California, and either passed through on the way to the purchase point or made the purchase, remotely, in California.”

It’s 2026, not 1995, and yet a so-called expert is invoking the metaphor of Roblox users traveling on a “digital highway” into California??? I’m envisioning those consumers driving their virtual Casper SUVs on the virtual information superhighway to a virtual California car dealer.

* * *

Despite the “experts,” the litigation wipes out for lack of personal jurisdiction. Boyden cannot show that HMC expressly aimed a tort at California.

The appellate court emphatically rejects the idea that a Korean marketing campaign’s “California ethos” can form the predicate for jurisdiction in California:

we begin by dispelling the notion that what Franklin referred to as the “California ethos” could ever be considered as contributing to the establishment of the direct aiming requirement in this or any other case. Many businesses routinely draw on themes or elements evoked by cultures originating from beyond the borders of the state(s) or countr(ies) in which they operate. Such businesses include, for example, restaurants, martial arts studios, foreign language academies, and sellers of apparel. To suggest that a restaurant chain in Japan that offers only gumbo, jambalaya, etouffee, Abita beer, and beignets, that serves those dishes only to customers in Japan, and whose marketing features a fleur-de-lis, mardi gras beads, and zydeco music, should, by virtue of that menu and marketing, be exposed to an increased risk of being haled into court in Louisiana is to offend traditional notions of fair play and substantial justice. By the same token, so too would it offend such notions to suggest that a restaurant chain in Louisiana that offers only sushi, sashimi, ramen, miso, and sake, that serves those dishes only to customers in Louisiana, and whose marketing features images of Mount Fuji, cherry blossoms, and samurai swords should, by virtue of that menu and marketing, be exposed to an increased risk of being haled into court in Japan….we reject Boyden’s argument that HMC’s use of the “California ethos” in its marketing should influence our express aiming analysis

If a judge eviscerated my expert report like this, I would run home crying to my mama. It almost felt like Justice Kelety enjoyed detailing how the expert had immolated his credibility. (The lawyers who solicited and based their advocacy on this expert report shouldn’t feel too great about their decisions either).

There are problems with other parts of the case:

“defendant’s use of digital marketing services made available to it by California-based digital technology companies is, by itself, too slender a reed on which to premise a claim of sufficient aiming activity”
“the opinions of Franklin and Woolley seem speculative in many respects” because they repeatedly assumed certain facts were “more likely than not” true.
“neither the declarations of Boyden’s marketing expert nor the declaration of his counsel complied” with California’s procedural rules for making declarations. (Oops).

* * *

There is a good reason why plaintiff’s lawyers generally don’t bring overly speculative publicity rights lawsuits. The California statute (3344) says the “prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.” In other words, the attorney fee shift is mandatory, not permissive. That puts plaintiffs on the hook for potentially big bucks if they lose, like they did here. Boyden will be receiving Hyundai’s giant bill for its attorneys’ fees, which Team Boyden helped inflate by overlitigating the jurisdiction issue. That payment will be on top of any out-of-pocket payments Team Boyden already made to its “experts.”

Case Citation: Boyden v. Hyundai Motor Co., 2026 WL 3046224 (Cal. App. Ct. Oct. 12, 2026).

Personnel notes: The plaintiff lawyers in this case were Ochs Law Firm (Jason Edward Ochs) and Wagstaff & Cartmell (Adam S. Davis and Austin P. Brane). The plaintiff ‘s experts included “the head of strategy at automaker Nissan’s marketing agency, Jeremy Franklin, who described himself as an expert in automotive and digital marketing” and communications professor Samuel C. Woolley, who has an endowed chair in “disinformation studies” (does his scope of research include disinformation in expert reports?).

The post Marketing a “California Ethos” Doesn’t Support a California Publicity Rights Lawsuit–Boyden v. Hyundai appeared first on Technology & Marketing Law Blog.

Should Police Wipe a Criminal’s Cellphone Before Returning It?–U.S. v. Stathas

Eric Goldman — Sat, 17 Oct 2026 15:38:05 +0000

“Stathas pleaded guilty in 2023 to enticing a minor to engage in unlawful sexual activity” (18 U.S.C. § 2422(b)). He was sentenced to 180 months in prison and 10 years of supervised release.

As part of the arrest and investigation, the police seized Stathas’ car, cellphone, wallet, and other electronics. Per 18 U.S.C. § 2428(a)(1), the judge should have ordered (but did not) a forfeiture of “any property, real or personal, that was used or intended to be used to commit or to facilitate the commission of such violation.” The forfeiture should include the cellphone (Stathas used it to communicate extensively with the victim), but does that include the data on the cellphone, which arguably is neither real property nor personal property?

Produced by ChatGPT October 2026

After Stathas’ sentencing, the police agreed to return his car, wallet, and other electronics. If the police had gotten a forfeiture order, they wouldn’t have to return his cellphone at all, but instead they agreed to return the phone only after wiping it “because it contained obscene, sexually explicit conversations between Stathas and the victim, as well as the victim’s identifying information.” “Stathas responded that although he did not object to the government deleting his conversations with the victim, other data on the phone should be preserved because it was meaningful to him personally or relevant to a possible civil lawsuit against the West Bend Police Department.”

The Seventh Circuit says no:

the government’s retention and destruction of the data on Stathas’s cellphone is reasonable under the circumstances. The district court’s finding that the phone was rife with “numerous sexually explicit messages and images” sent to the victim as well as “significant personally identifying information about her” is not clear error. The record reveals that these conversations occurred over multiple apps on the phone and that Stathas also received explicit photos of the minor. The court did not clearly err by crediting the government’s assertion that “no procedure short of digitally wiping” the phone would eliminate all criminal or harmful material. Given the importance of the government’s interest in ensuring none of this material remains on Stathas’s phone, the district court did not abuse its discretion in concluding that the government could delete the phone’s data before returning it.

I haven’t seen a lot of discussion about wiping cellphone as a criminal remedy. In a case like this, it makes sense that the data associated with the crime should not go back into the criminal’s hand. At the same time, a cellphone wipe deletes a lot of data that may have nothing to do with the crime. Depending on the nature of that data and the availability of backups, a cellphone wipe could profoundly affect a person’s life. For example, if the cellphone had the data necessary to establish Stathas’ legal claim against the police, the cellphone wipe might extinguish his legal claim entirely.

The severity of a cellphone wipe brought to mind the Supreme Court’s discussion about the importance of cellphones (in a slightly different legal context) in Riley v. California, 573 U.S. 373 (2014):

The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

One of the most notable distinguishing features of modern cell phones is their immense storage capacity….

The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on. We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future.

The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary. But those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate….

Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.

In 1926, Learned Hand observed that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

As people’s lives increasingly revolve around their cellphones, a cellphone wipe is a dramatic remedy. I’d love to hear your thoughts about ideas of how to protect the victims in this case without a complete wipe of Stathas’ phone. Similarly, if a criminal forfeiture law applies to cellphones, does that always prohibit the cellphone owner from getting a copy of the data on it? That seems unreasonable given how likely it is that the data “forfeiture” may reach data that’s valuable, irreplaceable, and completely independent of the crime.

Case Citation: U.S. v. Stathas, 2026 WL 3061816 (7th Cir. October 13, 2026)

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Some New Data on Age Authentication Balk Rates

Eric Goldman — Wed, 14 Oct 2026 16:46:19 +0000

Created by ChatGPT May 2026

The issue is: if a website imposes a government-compelled age authentication wall, what percentage of users will stop at the authentication wall, either because the users turn around or fail to navigate the process? I call that percentage the “balk” rate. For background on prior studies and why balk rates can vary widely, read my prior coverage first.

I’m now reporting on a study by All About Cookies entitled “72% of Americans Don’t Trust the Companies Verifying Their Age Online.” The writeup qualifies the headline claim: “72% of Americans express low levels of trust in the companies and services handling age verification data, including 40% who do not trust them at all.” The other 32% say they “slightly” trust the authenticators.

This chart shows what happened when users were confronted with an age authentication wall (users could select multiple options):

I disregard the first and third options because they are self-reporting, and that isn’t an “authentication” at all. Instead, focus on the bottom three options, all of which are rejections of the age authentication wall (go somewhere else, abandon the effort, or bypass the wall using VPNs). The first two are balk rates; the third also rejects the age authentication wall.

One way of reading this data is that only 31% of consumers were willing to age-authenticate; all other consumers chose some other non-authentication option if they could. Because users could pick multiple choices, we can’t combine the three rejection options (which adds up to 32%) and compare it to the 31% who said they authenticate. But even if we take the most conservative reading of this data and say that there’s at least an 11% balk rate, that’s still a lot of disruption of existing user activity.

The report summarizes this chart with this confusing statement: “Age verification laws don’t get more people to verify: 31% complete verification in states with and without laws. Instead, people in law states are 7x more likely to give up entirely and 4x more likely to use a VPN.” The survey didn’t provide the supporting data to explain the 7x assessment, but I interpret it as a warning that the quantity of consumer balks will soar as more states’ age authentication mandates come into effect.

The next chart asks how comfortable users would be sharing the specific items of data to get through an age authentication wall:

As you can see, the “least” troubling option is an automatically scanned selfie, which more than 2/3 said they would be uncomfortable with sharing. Credit card authentication–which used to be the benchmark for age authentication in the 1990s and is now considered no longer credible–made nearly 9 of 10 consumers uncomfortable.

Over time, these discomfort rates might organically decline as age authentication mandates become ubiquitous, which will cause consumers become to desensitized to the omnipresent privacy invasions.

Zero-knowledge proofs might also change how consumers feel about sharing their government-issued IDs because the ID contents would not be shared. However, to reach that point, consumers first will have to overcome the many troubling implications of installing a government-issued digital ID on their device. Personally, I’m a hard “no” on digital IDs.

We can’t directly infer a balk rate from this data, but it’s not good. When users are uncomfortable with the data disclosure, they weigh the costs/benefits of proceeding. If they can’t easily assess the benefits–which will often be the case with new services that the consumer doesn’t know well–then the discomfort is likely to increase balk rates. As I mention in my Segregate-and-Suppress paper, the resulting changes in consumer behavior are likely to hinder new market entrants and overall market dynamism.

Overall, I don’t see how anyone, especially government regulators, can look at the emerging balk rate data and think that the Internet is going to be just fine when online age authentication mandates become ubiquitous.

Blog Posts on Segregate-and-Suppress Obligations

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Washington Supreme Court Dismisses Meta Pixels Case–Baker v. Seattle Children’s Hospital

Eric Goldman — Tue, 13 Oct 2026 15:30:05 +0000

This is a Meta Pixels case on appeal to the Washington Supreme Court. It fails on a highly technical interpretation of the statute.

The applicable Washington state statute restricts the interception of communications between two individuals. The Supreme Court says that a corporation isn’t an “individual” for purposes of this statute. Thus, the user’s interaction with the corporate-run website didn’t have sufficient human involvement:

no party disputes that SCH is a corporation, and each communication involved only one of the plaintiffs and a fully automated system SCH owns and operates. Thus, under the plain language of RCW 9.73.030(1), the plaintiffs did not communicate with an “individual” when searching or clicking and receiving automated responses. The WPA provision at issue covers only private communications transmitted between “two or more individuals.”

A concurring judge agrees with the statutory parsing but adds that “private communications transmitted between an individual and individuals working for a corporation are protected by our privacy act.”

Implications

This opinion only dealt with Washington state’s ECPA equivalent and depended entirely on the court’s textual interpretation of that statute. As a result, this ruling isn’t likely to have significant implications for other states’ ECPA-equvalent laws or other legal doctrines.

Still, this ruling essentially ends the ability of Meta Pixel plaintiffs to claim violations of Washington’s ECPA-equivalent communications privacy law. That may not end their cases overall, but it shuts down one path to plaintiff success.

Further, I continue to wonder if the entire Meta Pixels litigation industry–a massive enterprise with hundreds of lawsuits–may be founded on legally unstable grounds. The pixel cases routinely survive a motion to dismiss at the lower court level, but on appeal, the cases have repeatedly turned sour. Those appellate court rulings can undercut dozens or hundreds of other rulings, hollowing out the entire Meta Pixels litigation genre. Plaintiff lawyers have invested a lot of energy in the Pixels cases, and some or all of that has been socially unproductive.

Case Citation: Baker v. Seattle Children’s Hospital, 2026 WL 3023818 (Wash. Supreme Ct. Oct. 8, 2026)

More Posts on the Pixel Cases and Related Claims

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My Reddit AMA on the Law of Web Scraping

Eric Goldman — Mon, 12 Oct 2026 16:26:52 +0000

On Friday, I did a Reddit AMA with the r/WebScrapingInsider subreddit about the law of web scraping. You can see the entire discussion here.

I posted an introduction to the AMA, which I am sharing here:

Hi everyone, and thanks for joining this Reddit AMA on web scraping! I thought it would be helpful to start with some introductory remarks.

First, and most importantly, a reminder about the ground rule. Nothing in this AMA constitutes legal advice. I will discuss some general legal principles, but I can’t opine how those principles apply to your circumstances. Further, many of the topics we’re going to discuss are contested, and everyone has different tolerances for legal risk. Before you make any decisions, you need to talk with a lawyer about how the law applies to your circumstance and what level of legal risk you’re willing to accept.

Also, as Ian mentioned, I am focused on US law. The rules outside the US could look quite different!

Some background about me: I am an OG Internet Law expert. I got my first email account in 1991, published my first Internet Law paper in 1993, started practicing Internet Law in 1994, and started teaching an Internet Law course in 1996—a course I still teach today, 30 years later. I have been a full-time law professor since 2002.

As an Internet Law expert who formed his intellectual identity in the 1990s, I still approach Internet Law as a generalist, which was the norm back then. I don’t focus on any one topic of Internet Law. Instead, I still track and pay attention to dozens of Internet Law topics. The scraping/trespass to chattels doctrines are just a subset of my overall portfolio of interests. You can see my academic writings at https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=332758 Some of my other scholarly priorities include liability for user-generated content (UGC)/Section 230, online trademark law, and emoji law. My forthcoming book project will be about the Internet’s pro-social benefits and how legal regulation jeopardizes those benefits.

Despite my generalist orientation, I find the law of scraping especially interesting. I got my first client question about scraping probably around 1997. When I was in-house, scraping was an evergreen topic. I routinely test on scraping in my Internet Law course. For example, this year’s midterm was based on Vox Marketing Group v. Prodigy Promos, 556 F. Supp. 3d 1280 (2021).

* * *

Part of why I find the topic so fascinating is that I have complicated feelings about scraping from a policy standpoint.

On the one hand, I believe property owners should generally have the ability to decide how their property is used. Scraping can involve unwanted and unconsented uses of a property owner’s property, in ways that can be pernicious.

On the other hand, I believe in access to information. (My mom was a librarian). To the extent that scraping enables better insights, better knowledge, and stronger markets, it’s a social benefit.

Furthermore, the Internet succeeded in part because of its seamless, low-friction, low-transactions-cost navigation. To keep that architecture, browsing the Internet should be a permission-less experience. Anti-scraping doctrines threaten to convert web browsing into a permissioned experience, where there are checkpoints at every site’s perimeter and permission is needed for access. Those barriers threaten to undermine the Internet’s navigability and utility, in ways that will disadvantage all of us.

[Note: Trespass to chattels doctrines are just one way that services can impose permissioned access into web navigation. Copyright law is another. Yet another is the online age authentication mandates sweeping the globe. For more on my opposition to age authentication mandates, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5208739 An obvious point: if age authentication checkpoints become ubiquitous in the Internet, that will have major impacts on scraping because most content will live behind age authentication walls].

I have never fully written up my complicated thoughts about these topics, but this piece will give you a sense of my thinking. https://blog.ericgoldman.org/archives/2013/04/rethinking_onli.htm

Here’s how I frame some policy considerations of scraping for students:

On the plus side: Scraping can enable services that create significant social benefits, such as search engines, price comparison bots, and AI modelbuilding. Also, anti-scraping efforts are frequently anti-competitive, i.e., an intent to manufacture or maintain monopolies. In particular, anti-scraping tactics can represent an attempt to obtain IP-like rights, even if the service doesn’t qualify for IP protection. You can see some of these dynamics in the Register.com v. Verio case, where Register.com was using contracts and trespass to chattels to protect non-copyrightable material (WHOIS registrant contact info) to preserve its first-mover-advantage control over that contact information.

On the minus side, scraping can look like a DOS attack (intentionally or not). It can facilitate massive copying, including possibly copyright infringements. And scraping can be a massive invasion of consumer privacy.

So, from a policy standpoint, is scraping a good or bad thing? ¿Por qué no los dos?: Or, to put it into legalese, “it depends.”

* * *

As for the law of scraping, it’s a mess, especially the trespass to chattels doctrines (I summarize them as “TTC”). For about two decades, I taught the Intel v. Hamidi and Register.com v. Verio cases. Around 2024, I felt like those cases no longer reflected the current legal state, so I regretfully took them out of my Internet Law casebook. [For more on the casebook, see https://blog.ericgoldman.org/archives/2026/07/announcing-the-2026-edition-of-my-internet-law-casebook.htm] I have not yet found a good replacement case to add to the casebook, so my casebook coverage of the topic is now adrift. I now teach the X v. Bright Data ruling (the first one granting the motion to dismiss) and it’s not very satisfying. Because there is no good single case or set of cases to teach the topic, and because the law is so unsettled, I tell my students that the topic has become “unteachable.” You can imagine how much they like hearing that LOL.

I teach students to run through a four-step process to determine if/how trespass to chattels applies:

Step 1: does the plaintiff own the affected chattel? Usually, the chattel is the servers or other physical hardware that is used to run the server and connect it to the Internet. The trespass to chattels doctrines are a good illustration of the interplay between the law of physical space and activities taking place in a virtual environment. Students sometimes struggle to wrap their heads around the distinctions between tangible items (i.e., “chattel”) and intangible things, such as data or online accounts, which may be protected by other legal doctrines (copyright or other IP) but don’t legally qualify as the “chattel.”

Step 2: did the defendant “use” the chattel? Usually, sending or receiving packets from a server qualifies.

Created by ChatGPT Dec. 2025

Step 3: was the defendant’s use “unauthorized”? The law might presume that a server owner impliedly permits ordinary Internet traffic merely by making the choice to connect to the open Internet. How can the server owners remove this implied permission? This is one of the areas that is unteachable. There is no clear answer to how a server owner can structure this dialogue with Internet users. Some of the possible tools that a server owner MIGHT be able to use to remove any implied authorization to use their chattel:

TOSes
C&D letters
Technical access controls like registration walls
Technical access controls like IP address blocking
Signals such as robot exclusion headers

But, none of these mechanisms are guaranteed to work. This is an area of doctrinal chaos. I’m sure we’ll spend some time discussing if and when those efforts are effective. In general, for each bullet, I have more questions than answers.

Step 4: did the defendant’s unauthorized use create legally recognizable harm? This is also an unteachable aspect because, again, I typically have more questions than answers about what harm will suffice. The court’s flip-flop in the X v. Bright Data case is a good example of how unpredictable this topic is.

* * *

For my students, I summarize the law of scraping with the following tagline: “Scraping is ubiquitous but not clearly legal.” This breaks my students’ brains. If it’s so ubiquitous, it must be clearly legal…right?

In order for a scraping campaign to be legal, we have to navigate ALL of the following doctrines:

Trespass to chattels. I tell my students that they should always discuss all three of these doctrines as a troika:
- Federal statutes, especially the Computer Fraud and Abuse Act (CFAA).
- State statutes, such as the state computer crime laws. Here in California, we focus on Cal. Penal Code 502.
- Common law trespass to chattels, such as the Hamidi and Bright Data cases.
Copyright law (106). I spend some time explaining why ordinary web browsing might be copyright infringement because copyrighted material necessarily is downloaded into the browser’s RAM. The students really don’t like that discussion LOL. If web browsing is infringement, then scraping would be as well. In addition to the initial downloading, scrapers might encounter further 106 trouble with republishing some or all of the scraped material.
Copyright law DMCA (1201/1202). I don’t cover this angle in class yet because it’s too underdeveloped and chaotic, but I’m sure we’ll spend some time on 1201 today. To give you a preview, the 1201 rulings to date break my brain, and I have more questions than answers.
Many TOSes contain anti-scraping provisions, but it’s not clear if the TOSes are properly formed. In my Internet Law course, we spend a full 2 weeks discussing TOS formation. The law evolved a lot in the 2025 decisions in Chabolla and Godun in the 9th Circuit.

There may be other legal doctrines raised by scraping, such as trademarks and privacy rights.

So here’s why I say that scraping is not clearly legal. In order for a scraping campaign to be permissible, it must survive each and every one of the doctrines enumerated above. If the campaign fails any one of the doctrines, it’s not legal and the scraper can face significant consequences (including, in some cases, criminal liability). It is daunting to build a scraping campaign that can successfully navigate so many legal doctrines perfectly.

* * *

My apologies for such a long-winded introduction (although, I remind you that I’m a law professor, so loquaciousness isn’t really that surprising, is it?) The law of scraping is so complicated and multi-faceted that it’s easy for the discussion to go down rabbitholes or for conversants to talk past each other. I hope this intro provides some helpful structure and context for my more detailed comments.

Thanks again for engaging with the AMA. A blanket apology in advance for all of the times I answer “it depends,” “I don’t know,” or “that’s a good question.” And in all cases, don’t take my word as the final one—talk with your lawyer if you are making any decisions!

The post My Reddit AMA on the Law of Web Scraping appeared first on Technology & Marketing Law Blog.

Judge Barker (E.D. Tex.) Disassembles Two SAD Scheme Cases

Eric Goldman — Mon, 05 Oct 2026 18:26:50 +0000

Judge J. Campbell Barker (E.D. Tex.) issued two rulings involving SAD Scheme patent cases last week. The cases are:

Shangyou Jiayi Lighting Product Co., Ltd. v. Schedule A Defendants, 2026 WL 2948520 (E.D. Tex. Sept. 30, 2026) and
Haiying Liu v. Schedule A Defendants, 2026 WL 2948569 (E.D. Tex. Sept. 30, 2026)

As per the new norm, these cases appear to be Chinese companies suing their Chinese competitors in US court. Another example of how rapidly the Chinese learn from U.S. (judicial) “innovations.”

Judge Barker issued two very similar opinions. Neither went well for the plaintiffs. Many of his points fundamentally reject standard SAD Scheme arguments that are prevalent in many other cases.

Given their extensive overlap, I’ll cover the Shangyou Jiayi Lighting case first and then discuss some differences in the Liu opinion.

Shangyou Jiayi Lighting

Judge Barker starts with an obvious yet often undervalued point: “Schedule A cases can have an uncertain fit with the Federal Rules of Civil Procedure and due process.” I would have gone further and said the cases categorically don’t comply with FRCP or due process, but at least this shows he understands the gaming risk.

Email Service of Process

“Two circuits have now held that the Hague Convention, when it applies, prohibits service by email on defendants in China. The court agrees with that analysis….The court agrees with the Second Circuit’s recent conclusion that, where the Hague Convention governs service of process on a defendant in China, it prohibits service by email. ”

The plaintiff weakly argued that it was hard to find the defendants’ physical addresses. That did not go well:

Plaintiff argues that defendants primarily use electronic communications to operate their businesses and communicate with customers and third-party sales platforms. That answers the wrong question. Conducting business online and communicating mainly by email bear on whether email is reasonably calculated to give notice under Rule 4(f)(2) or (3) and the Due Process Clause…It says nothing about whether any defendant’s physical address is known. And only that question controls whether the Convention applies here.

A defendant may do business entirely by email and still have a physical address that is known or discoverable with diligence….

Diligent efforts to find a defendant’s address include more than just stating the difficulty of the endeavor….

Plaintiff has put forth no evidence that it could not find defendants’ Chinese addresses despite diligence. So plaintiff has not established this exception to the Hague Convention’s application.

Personal Jurisdiction

“Even the approaches most favorable to Schedule A plaintiffs rely on a completed sale of an accused product into the forum. As explained below, the record here shows no such sales by any defendants.”

The plaintiff’s items of evidence “are screenshots of Amazon checkout pages listing an address in Plano, Texas, which is within this district, but no completed purchases. Pages showing that a product could be shipped to the forum do not establish a sale into it.”

Asset Freeze

As usual, the plaintiff sought to freeze of the defendants’ money held in third-party accounts and obligate third-party services to freeze the money. The plaintiff backed off the freeze order on the third-party services, but the court also highlights a jurisdictional problem: “To the extent the proposed order would have been binding on the platforms directly, apart from any relationship to defendants, it would still have adjudicated defendants’ interests in their own property without jurisdiction over them.”

Unmasking Subpoenas

Judge Barker rejects a general discovery order to third-party services. However, “If plaintiff believes that a platform’s records would show sales of accused products shipped to Texas, it may move for leave to serve targeted subpoenas for that limited purpose.”

Joinder

“Schedule A cases often join dozens or hundreds of unrelated online sellers in a single action based on little more than their alleged infringement of the same intellectual property. Courts have increasingly rejected that practice.”

Here, the plaintiff narrowed the defendant list to the point where the judge accepts joinder:

The concern that can arise with Schedule A joinder in other cases is not present here because plaintiff does not sweep together unrelated sellers. It sues sales channels allegedly operating together under one operation. Plaintiff supports the connection among the defendants with allegations beyond the alleged infringement itself: use of the same or similar advertising look and feel, product images and descriptions, and tactics to evade enforcement efforts. On plaintiff’s theory, its claims against each defendant arise from the sale of the same accused products by the same operation and will present common questions of fact. That satisfies § 299(a) at this stage.

I don’t know about this. SAD Scheme plaintiffs routinely claim that the defendants all use the “same or similar advertising look and feel, product images and descriptions, and tactics to evade enforcement efforts.” To me, this looks like a standard plaintiff boilerplate roboargument.

Sealing of Filings

Temporary sealing can serve a legitimate purpose in an ex parte proceeding. It can prevent a defendant from defeating relief before the court can act. But that justification lasts only as long as the application for ex parte relief is pending, and it ends once the court has ruled. The court has now denied the temporary restraining order and asset restraint. Now that the court has ruled, the public’s interest in access extends to the ruling itself and to the record on which it rests. And no document sought to be sealed is claimed to contain confidential business information or personal information warranting protection.

Continued sealing would also undermine protections for defendants in the federal rules. A plaintiff may voluntarily dismiss an action without a court order before defendants answer. But the federal rules protect defendants against repeated litigation of the same claim: A second voluntary dismissal of the same claim operates as an adjudication on the merits. And a court in which the claim is refiled may award the costs of the prior action and stay proceedings until they are paid.

Those protections, and the related-case disclosures that courts require when a case is filed, depend on the prior action being discoverable. If this record remained sealed and the case were dismissed by plaintiff, neither defendants nor another court could readily learn that the claims had been asserted or that relief had been sought and denied. That concern is not hypothetical in Schedule A litigation.

It’s great that Judge Barker recognizes the risks of plaintiffs dragging defendants through multiple lawsuits until the plaintiffs get the positioning they want. Docket transparency is a partial cure, but more is needed too.

Notice to Defendants of the TRO Request

The plaintiff didn’t notify the defendants of the TRO request and didn’t adequately explain why not:

The reasons offered for proceeding without notice are generic. Plaintiff says only that defendants “can and likely will take immediate steps to permanently alter the status quo, including but not limited to steps such as registering new e-commerce stores under new aliases and moving any assets to offshore bank accounts outside the jurisdiction of this Court.” Nothing in the record describes anything these defendants have done to suggest they would dissipate assets or evade an order.

Judge Barker blows up the standard SAD Scheme plaintiff expectation that it’s obvious every Chinese defendant will go rogue. That claim requires more facts than just rote recitation.

Likelihood of Success on the Merits

Judge Barker notes the problems with testing the claim’s legitimacy in an ex parte proceeding:

Ordinarily, an accused infringer can defeat preliminary relief by raising a “substantial question” of infringement or validity. But, here, no defendant is present to do so. That makes it all the more important that the court at least attempt to test plaintiff’s showing on its own terms—and make its assessment of likelihood of success with eyes wide open to the limitations of a one-sided presentation.

This is true with utility patent claims and even more true for design patent claims. Our adversarial system depends on defendants calling attention to the weak points of the plaintiffs’ claims. Judges are not well-positioned to intuit what defendants might hypothetically say if they were around.

With respect to claim 1 of the patent:

The claim chart features only a single unidentified product, which plaintiff alleges—with no declaration, affidavit, or legal analysis—is “representative of all of the Infringing Products identified in Schedule A”. The photographs of the unidentified product contain a few labels purporting to identify only a lamp, with its conducting-wires, light-emitting components, conductor and insulating layers, plurality of openings, and conduct-or-contact surfaces. This is facially insufficient to establish a likelihood of success on the merits where the limitations of Claim 1 are far more substantial than the limited number of identified details in each photo. In fact, plaintiff’s showing is scarcely more than the screenshot-only presentations that have drawn criticism in other Schedule A cases….

the court cannot comprehend how a chart exemplifying a mere “perfunctory submission” can be said to show a likelihood of success on the merits.

The chart refers to “Defendant #10 Infringing Product” in the singular, and it does not say which listing the photographed product came from or how plaintiff examined it. But plaintiff accuses 14 separate products of infringement. Nothing in the record shows that each accused product contains the structure depicted in the chart, except for plaintiff’s assertion that they are “identical … in all aspects relevant to the [patent] claims.”…

“[S]imply mimicking the language of the claims when identifying infringement” fails to establish even reasonable notice of plaintiff’s theories of infringement, and it is certainly insufficient to find a likelihood of success on the merits….

The product identifiers listed in the motion cover some 14 listings. Plaintiff has not shown a likelihood of infringement as to any of them.

Asset Freeze Redux

“because a utility patent plaintiff’s monetary remedy is legal damages, a federal court lacks authority to freeze a defendant’s assets to preserve that remedy.” [cite to Grupo Mexicano de Desarrollo]

Judge Barker also explains how an asset freeze would reach assets unrelated to the alleged infringement:

an asset freeze preserves only assets that may be needed to satisfy that equitable relief. But the proposed order would bar defendants from transferring “any money held by a Third Party Provider,” without regard to location, amount, or source. Plaintiff now concedes that defendants may continue selling non-accused products. Yet the proposed order on file would reach the proceeds of those very sales. And it would freeze all funds associated with defendants’ storefronts and with any other accounts later identified….

The requested freeze would thus restrain defendants’ entire business to secure a claim for damages that plaintiff has not attempted to quantify.

Overfreezes are ubiquitous with the SAD Scheme. The plaintiffs usually cannot model how much money is atttributable the defendant’s infringing conduct (if any) at the ex parte TRO stage (pre-discovery). Thus, the TRO routinely freeze all of the defendant’s assets, including proceeds of non-infringing conduct. That is categorically a due process violation.

Echoing the Eicher Motors case, Judge Barker flags the harms that an asset freeze can cause (emphasis added):

The requested freeze would do more than preserve the status quo. Defendants would first learn of this suit when their accounts were frozen. The freeze would reach “any money held by a Third Party Provider,” including the proceeds of products that plaintiff concedes defendants may keep selling. Such a freeze “locks down defendants’ assets” and can cause “severe or fatal cashflow problems for the defendant, which may not be able to pay its vendors, employees, or lawyers.”…

Without defendants’ participation, moreover, the court has no reliable way to weigh the harm that the freeze would cause them or plaintiff’s likelihood of success in overcoming any invalidity or non infringement defense. An asset restraint that impairs a defendant’s ability to answer the claims against it is not a measure that preserves the status quo pending a hearing. It is a measure that may prevent a hearing from ever occurring.

This is such an obvious point, and yet judges often elide it. Ex parte TROs are supposed to temporarily preserve the status quo, but SAD Scheme ex parte TROs routinely disrupt the status quo and change the parties’ substantive rights. That is another part of their due process problems.

Bond

The court doesn’t grant the equitable relief, so no bond was required. Nevertheless, Judge Barker pushes back on the plaintiff’s request:

The proposed order would freeze “any money held by a Third Party Provider” of 14 defendants. It would bar sales of some 14 product listings. The court is not satisfied that a mere $10,000 injunction bond would properly compensate defendants in the event that the requested TRO, if entered, turns out to have been legally or factually improper.

In my SAD Scheme Standing Orders paper, I note that judges don’t have any rigorous methodology for setting bond amounts. This is especially a problem in ex parte proceedings, where the judge has no indication of how the ex parte TRO will impact defendants.

Implications

Reading this opinion, this meme kept coming to mind:

In my ideal world, Judge Barker would have rejected the entire premise of the SAD Scheme cases, rather than poking holes in multiple individual pieces. Even so, this opinion calls out many problems with standard SAD Scheme lawsuits. Many of those problems are essentially manifestations of an overdeveloped sense of entitlement, i.e., “I’m an IP owner, so I deserve everything I ask for without question.” Fortunately, Judge Barker doesn’t rubberstamp those requests.

Liu Case

The Liu decision has a lot of overlapping language with the Shangyou Jiayi Lighting decision, so I will just highlight some of the new incremental points of interest.

Personal Jurisdiction

The only evidence the motion offers for those assertions is one sentence in plaintiff’s declaration, stating that defendants “collectively advertise, distribute, and sell the accused product into the United States, including Texas.”

That sentence identifies no sale, buyer, shipment, or date in Texas. It attributes the conduct to defendants collectively rather than to any one of them. And it has no stated basis. Plaintiff resides in Shaanxi Province, and the declaration refers only to “my investigation,” without saying what that investigation involved….

Exhibit 1 is a Facebook page for “Tiny Land Inc” that lists Shanghai Tailan as the entity responsible for the page. Exhibit 2 consists of photographs of a product box. Exhibit 3 is a Chinese corporate-records printout for Shanghai Tailan. None of these materials mentions a sale, a shipment, or a customer in Texas….

For the tinylandus.com website and the Wayfair store-front, plaintiff’s exhibits include only checkout pages listing Sherman, Texas, shipping addresses, with no completed purchase. For the Walmart storefront, the exhibits show only items placed in a shopping cart. Pages showing that a product could be shipped to the forum do not establish a sale into it.

Though the plaintiff didn’t highlight it, there was one sale delivered to a Texas address. The court says that evidence might provide enough support for jurisdiction for that sale.

Joinder. “Plaintiff supports the connection among the defendants with evidence beyond the alleged infringement itself: the Facebook page, the product packaging, and the shared email domain.” I’ve seen weaker evidence in support of joinder, but this could also be a roboargument.

Notice before the ex parte request. As further evidence that the plaintiff didn’t have any reason to assume asset dissipation on notice, the court says “The business operator that plaintiff identifies is, per plaintiff’s own evidence, a registered company with a known address that has operated under the same name for years.”

Likelihood of success on the merits.

With respect to claims 1 and 8:

Plaintiff argues that the accused products “practice each and every limitation of at least independent claims 1, 8 and 9” of the asserted patent. But plaintiff’s claim chart addresses only claim 9. The chart expressly states that plaintiff “reserves the right” to assert claims 1 and 8 later, “based on further investigation and discovery.”

I’m pretty sure that’s not how pleading burdens in patent cases are supposed to work, but in SAD Scheme cases, plaintiffs often get away with a lot.

With respect to claim 9:

Plaintiff’s chart maps each limitation of claim 9 to photographs of a physical product. The photographs include labeled images of what plaintiff identifies as the annular and protective sleeving pipes, and images with a measuring tape comparing framering diameters before and after folding. That is a more substantial showing than the screenshot-only presentations that have drawn criticism in other Schedule A cases.

It’s amazing how much judges appreciate the plaintiffs taking small but seemingly obvious information steps like labeling photos, given how often SAD Scheme plaintiffs cut procedural corners and impose significant workloads on the judge’s staff. It’s still not enough in this case:

First, it concerns a single, unidentified product. The chart refers to “Defendants’ Accused Product” in the singular, and neither the chart nor plaintiff’s declaration says which listing the photographed product came from, who obtained or examined it, or how. Plaintiff accuses 20 listings across four sales channels, identified by seven Amazon ASINs, three Walmart product IDs, three Wayfair product IDs, and seven website product IDs. These include a standalone 69-inch crawl tunnel and multipiece sets combining tents, ball pits, and tunnels of different sizes. Nothing in the record shows that each accused product contains the structure depicted in the chart.

Second, several of the chart’s key entries restate the claim language without explaining how the photographed structure meets it….

Third, plaintiff’s validity showing consists entirely of the statutory presumption. That presumption does carry weight at this stage. But on an ex parte record, the court has no way to assess prior art or other alidity challenges a defendant might raise.

This looks like another IP Privilege card. “I have a patent, so I win.”

Judge Barker summarizes the discussion:

At most, therefore, plaintiff has made a preliminary showing that the single product photographed in its claim chart likely meets the limitations of claim 9 and no patent-specific showing as to its likely validity. It has made no showing as to claims 1 and 8 and no showing as to any other accused product.

Bonus: The Smiley Company SPRL v. Schedule A Defendants, 1:25-cv-26045-RS (S.D. Fla. Sept. 23, 2026).

A Smiley case is likely going to fall apart due to misjoinder:

counsel for Plaintiff informed the Court that Defendants are likely located in the same region, China, and are operating in the same manner by selling infringing products online. Counsel for Plaintiff did not set forth any specific allegations explaining how the 50 remaining Defendants were connected to one another.

Simply alleging that Defendants have violated Plaintiff’s trademark in the same way is insufficient.

Great. At the same time, 32 defendants in that case have already been dismissed, likely because they settled a case that apparently violated joinder rules from day 1. Will the court take a look at the (il)legitimacy of those dismissals and any resulting settlements? Or did the plaintiff already reap the economic spoils from those 32 defendants based on an ex parte TRO that never should have issued?

Prior Blog Posts on the SAD Scheme

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Sedlik v. Von Drachenberg: The Right Way to Evaluate Wrongfulness (Guest Blog Post)

Eric Goldman — Mon, 28 Sep 2026 14:00:34 +0000

by guest bloggers Bruce Boyden (Marquette Law) & Zahr Said (Santa Clara Law)

As we mentioned in our previous post, the Ninth Circuit’s intrinsic-extrinsic framework for substantial similarity has a number of problems. Those problems include confusing terminology, misuse of the terms “objective” and “subjective,” the lack of a clear goal for the infringement determination, and an unnecessary division of the substantial similarity inquiry, which creates havoc not only at trial but on appellate review. (For more, see our brief at 10-13, 24-31.) It is a welcome development that the full Ninth Circuit is revisiting the question en banc this week.

In this post, we’re not going to dwell on what is wrong with the current framework. Instead, we’re going to explain what we think should replace it and why.

A test for copyright infringement has to make several discrete inquiries, many of which are uncontroversial. First, the plaintiff must first demonstrate that it is the owner of a valid copyright in a registered work. Second, the plaintiff must show that its copyright has been infringed in some way. So far, no one would disagree. For infringement through copying (as opposed to public performance or public display), even the Ninth Circuit now agrees (since Rentmeester v. Nike in 2018) that the plaintiff must prove both that the defendant actually copied material from the plaintiff’s work, and that the copying constituted wrongful appropriation.

It is the second sub-element of infringement–wrongful appropriation–where most of the confusion lies, and where we encourage the Ninth Circuit to focus the most attention in our amicus brief.

Created by DALL-E Sept. 2026

Any successful test for wrongful appropriation must at a minimum achieve three critical goals. First, unprotected material must be filtered out from the comparison, to prevent defendants from being held liable for taking material that copyright policy clearly states is common property. Second, in cases where a jury has been requested, the inquiries that form an infringement determination need to be appropriately divided between those that are primarily legal in nature, and thus can be decided by the judge, and those that are primarily factual in nature, which usually must be reserved for the jury. Finally, the purpose of the “wrongful appropriation” element must be made clear to judges and juries alike, both to enable them to apply it consistently and to prevent it from collapsing into a determination of actual copying.

In our brief, we recommend consolidating the extrinsic and intrinsic tests and dividing the wrongful appropriation inquiry in a different way. Wrongful appropriation should be separated into (1) an initial step focused on identifying the protected expression in the material plaintiff claims has been copied, and (2) a subsequent step of assessing whether the copied expression takes a substantial amount of the appeal of the plaintiff’s work to its ordinary audience.

The first step is one that in many cases will be mostly legal in nature, and one that is appropriately assigned to the court, preferably based on a plaintiff-generated list of the protectable expression that has been copied.

The second step is likely to be a task for the trier of fact, based not on the individualized view of the works personal to each juror, but rather on an assessment of the copied expression from the perspective of the ordinary audience. That assessment would focus only on copied expression, not unprotected material, and would be based on a comparison of both the discrete elements of each work as well as overall similarities or dissimilarities between the two–in other words, both the forest and the trees.

This revised framework has several advantages over the current Ninth Circuit test. One thing that many infringement tests lack, including the Ninth Circuit’s extrinsic-intrinsic framework, is a clear stage at which the copyrightable expression present in the material allegedly copied from the plaintiff’s work is identified and separated from unprotected (but similar) material, which is then used in the ultimate comparison of the two works. This is a critical part of any infringement determination, but one that is often folded into other stages of the inquiry, such as the extrinsic test in the Ninth Circuit. Given the minimal amount of creativity that copyright law requires to register a work, it is essential that at some point, difficult as it may be, the copyrightable expression and the unprotected material alleged to have been copied are distinguished from each other, in order to avoid conflating the two in either direction (over-protecting or under-protecting the plaintiff’s copyright).

That is why we recommend that any revised infringement test clearly identify a “filtration” stage as a distinct initial step of the wrongful appropriation inquiry. This sort of prior delineation of the scope of protection occurs in patent law (through claiming) and trademark law (which insists on identifying classes of protection in advance), but is lacking in copyright. Filtering for protected expression requires some familiarity with the Copyright Act–a statute never accused of being excessively accessible to lawyers, let alone to lay jurors–as well as comfort navigating the case law interpreting it. Judicially formulated limitations, such as the scènes à faire and merger doctrines, play a vital role in protecting the interests of authors, competitors, audiences and the public domain. Their contours, as applied, are often metaphysical and complex in ways that are unquestionably challenging for judge and jury alike.

In other words, we think that judges are usually going to be the better entity to filter for protected expression, for several reasons. Judges, if new to copyright, can more quickly be brought up to speed on copyright’s utilitarian purposes and the ways in which it does not always track lay expectations. Understanding the correct intended scope of protection is an important first step to applying filtering mechanisms accurately. Additionally, judges are more likely to have repeated experiences with determinations of copyright’s protected expression, especially in the copyright-heavy dockets, whereas most jurors are unlikely to serve on a jury more than once or twice in their lifetimes, let alone serve in a copyright trial more than once. Greater familiarity with copyright’s quirks and requirements makes it easier to filter effectively while still also protecting artistic expression robustly. Finally, judges’ determinations of protected expression as a matter of law can be reviewed de novo, which facilitates appellate review of the important legal question of the scope of plaintiff’s copyright.

We believe the filtering step, when performed by a judge, should be performed at a preliminary stage of the case (to allow for possible early resolution of the dispute) and, to minimize workload on the court, should be based on a list of the claimed protected elements in the plaintiff’s work that have been alleged to have been copied, a list the plaintiff should be required to produce.

There’s another issue addressed by our proposal, which has to do with distinguishing between the two parts of the inquiry to determine infringement, actual copying and wrongful appropriation. Frequently, these two steps are conflated in copyright cases. Many decisions seem to treat “substantial similarity”–the way wrongful appropriation is demonstrated–as a way of proving that the defendant actually copied something from the plaintiff. We recommend clarifying the distinction through both terminology and substance. With respect to terminology, the phrase often used for the second part of the infringement test––“substantial similarity”–is both unhelpful and potentially misleading. Similarity, as we say in the brief, is meaningless when considered by itself. Whether two objects are similar depends on what the goal of the comparison is. In the brief, we give the example of similar but not identical outfits–they may be too similar for evening wear, but not similar enough for a uniform.

We propose giving some shape to the substantial similarity inquiry by clarifying the goal. The purpose is not to determine similarity vel non, but to evaluate whether the defendant’s copying of protected expression was wrongful. We thus refer to the second part of the test not as “substantial similarity,” but as “wrongful appropriation”–although other phrases have been used (“unlawful appropriation,” “improper appropriation,” “illicit copying,” “actionable copying”), and those are consistent with our understanding. The point is that something other than simple copying of expression is being evaluated. Drawing on language from earlier cases, we connect the wrongfulness of the appropriation to whether it takes a substantial part of the appeal of the plaintiff’s work to the ordinary audience (e.g., ordinary observer, reasonable observer, or lay listener). In other words, the appropriation has to be significant enough to cause some harm to the plaintiff, whether that is monetary harm, harm to the plaintiff’s market share or potential audience, or some other cognizable injury.

Crucially, and worth repeating: injury has to be evaluated from an objective standpoint. The “ordinary observer,” like the reasonable person in tort law, is a legal fiction, an abstracted hypothetical entity meant to operate as a proxy. But a proxy for what? It is often unclear what it does and doesn’t do. The reasonable person standard symbolizes what an ordinary person ought to have done or known under similar circumstances, and thus helps define the boundaries of acceptable behavior versus unreasonable risk-taking or carelessness. That standard draws on ordinary experience common to the collective, rather than particularized to an individual decisionmaker. This distinction is why it is considered “objective” rather than “subjective.”

Similarly, the ordinary observer in copyright law helps locate the boundaries around certain behaviors through the adoption of a given perspective. From that vantage point, the trier of fact identifies when copying is unacceptable (“substantial appropriation”) and thus becomes legally cognizable as copyright infringement. Yet, adopting the ordinary observer perspective (or audience test) does not by itself yield the descriptively correct answer any better than any other test. As with the reasonable person standard, application of the ordinary observer standard inevitably integrates normative elements; there is no absolute “substantial similarity” that can be found, if we could only figure out the right decisionmaker. No matter what test is used, wrongful appropriation requires a normative determination, and the ordinary observer fiction is simply the framework through which to conduct that normative inquiry (a view captured in the Goldstein treatise and reflective of the modern trend since Arnstein v. Porter).

Often, the normative elements of the test are not fully acknowledged by courts, or they are wrongly characterized and even pilloried as undermining the jury’s ultimate conclusion. The problem is that there has been a pernicious slippage from objective to subjective conceptions of the ordinary observer, from ordinary observer as a fictional construct to ordinary observer as the jurors’ interior mental responses to the works. This slippage is a mistake; the second step of the substantial similarity determination should be treated as a device, like the reasonable person fiction–a device that formalizes the adoption of a lay perspective. The ordinary observer perspective is thus instrumental, a means to an end, and a means “peculiarly fitted” for a jury (to quote Arnstein v. Porter).

The problem with the slide from an objective to a subjective inquiry is that, in the Ninth Circuit, it would appear that jury verdicts on substantial similarity, precisely because they allegedly rest on jurors’ subjective views of the works, are treated as though they are a form of unshakeable truth accessible only to empaneled jurors and are thus inappropriate to consider on appeal. Now the ordinary observer test becomes something else altogether: not a helpful perspective to adopt, but the answer, and, what is more, a conclusion that cannot be revisited on appellate review. Put another way, courts are not merely expressing appropriate appellate deference in refusing to set aside or even review the jury’s view of the ultimate question of substantial similarity; they are giving voice to an unsupported, and ultimately untenable, view of epistemological supremacy. Under this view, the jury is a source of precious epistemic certainty, and its determinations must be presumed to be correct–and allowed to remain as they are.

Copyright’s ordinary observer standard resembles tort’s reasonable person standard, and it ought to be treated as an objective test, one that abstracts to a fictionalized entity in order to produce a normative conclusion about what is reasonable versus wrongful, whether the subject matter is a slippery sidewalk or a highly similar screenplay. As such, the ordinary observer standard, and the jury’s decision applying it, ought to be susceptible to sufficiency challenges like other jury decisions based on objective standards. Treating the jury’s conclusion as appellate Teflon represents a form of copyright exceptionalism and, as Prof. Sepehr Shahshahani argued in his amicus brief in Sedlik, a departure from longstanding rules and norms about the jury’s function. Whatever else it does in this case, the Ninth Circuit should ensure that copyright jury verdicts are treated no differently than jury verdicts in other areas of civil law.

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