Section 230 Year-in-Review for 2020
Section 230 had such a drama-filled year that I decided to do a separate roundup, in addition to my annual Internet Law wrapup coming soon. (I know 2020 feels like it was a decade ago…) Trigger warning: this post is a shitshow.
Justice Thomas Writes a Misguided Anti-Section 230 Statement “Without the Benefit of Briefing”–Enigma v. Malwarebytes
This statement bears some resemblance to Justice Thomas’ statement in early 2019 that the Supreme Court should reconsider the actual malice standard from New York Times v. Sullivan. Like this statement, that statement was anti-media, pro-censorship, and quite unpersuasive. So far, the Supreme Court hasn’t taken up Justice Thomas’ initiative against the actual malice standard. I hope this statement suffers the same fate.
Videogame Doesn’t Infringe Tattoo Copyright By Depicting Basketball Players
This case deals with a venerable and vexing copyright law problem: if a person doesn’t own the copyright to his/her tattoos, do other people infringe by accurately depicting the person? The answer surely has to be “no.” Otherwise, ordinary daily activities, such as photos and videos in public, become an unnavigable thicket of potential liability. Fortunately, this case decisively reaches the right result. However, it’s unclear how much it predicts future cases.
More Teenagers Mistakenly Think “Private” Chat Conversations Will Remain Private
As you can see, the chat participants–especially 7Up and Lady Gaga–seemingly discuss killing S, his goldfish, and his dog. But in the context of nonsense teen chatter, I don’t think anyone could read this transcript and believe that any of participants actually planned to harm S or any animals.
An unidentified person tipped off S to the thread’s existence. S asked “Me” about it. Me revealed the thread’s name to S. This got back to S’s mom, who told the principal, who brought the girls into his office, seized their phones, and turned them over to law enforcement. Prosecutors brought charges against 7Up/JP for misdemeanor online threats. A jury convicted 7Up. The appellate court reversed.
This is mostly nonsense, although it’s somewhat interesting to see court opinions wrestle with the conundrum of quoting screenshots.
Terrible Ninth Circuit 230(c)(2) Ruling Will Make the Internet More Dangerous–Enigma v. Malwarebytes
The Ninth Circuit has issued a Section 230(c)(2) opinion that creates significant problems for anti-spyware/spam/virus vendors (I’ll call them “anti-threat vendors”). The ruling will paralyze their decision-making, expose them to greater legal threats, and reduce their ability to protect consumers from unwanted software. This ruling makes the Internet less safe. I hope the Ninth Circuit will fix it via further proceedings.
Nevertheless, the majority’s legal standard creates two obvious and significant problems. First, many spammers, virusmakers, and adware/spyware makers will claim–legitimately or not–to be direct or partial competitors with anti-threat vendors. In those situations, the threat purveyors will naturally claim that the blocking was motivated by anticompetitive animus. In fact, I would expect such anticompetitive animus claims to be routine for blocked entities, not an exception. Indeed, as the dissent noted, Zango claimed (not credibly) its adware was competitive with Kaspersky’s anti-threat software.
I would say it will be the AV companies facing bogus lawsuits who will lose the most, and probably not users, but it’s a bit of a pickle.
Comments on Rep. Gosar’s “Stop the Censorship Act,” Another “Conservative” Attack on Section 230
Now that the text is public, we can finally do a well-informed evaluation.
This bill is terrible in many ways. Among other problems, it grossly misunderstands Section 230’s mechanics, its desired policy consequences would be horrible, and it is misdrafted to advance those objectives.
It doesn’t bring me any joy to dunk on a bill like this. Like Sen. Hawley’s bill, it almost certainly was meant as a piece of performative art to “play to the base” rather than as a serious policy proposal. But even as performative art, it highlights how Section 230 is grossly misunderstood by politicians inside DC, and it’s a reminder that modifying Section 230 requires extreme care because even minor changes could have dramatic and very-much-unwanted consequences.
[Statute of] Queen Anne’s Revenge? Supreme Court Grants Certiorari in Allen v. Cooper
Most media reports concerning the case, however, were less concerned with the legal principle involved, and more interested in the factual situation out of which the dispute arose: the discovery, in 1996, of the 300-year-old wreck of the Queen Anne’s Revenge, the flagship of Edward Teach, better known as Blackbeard the pirate. Coincidentally, Blackbeard named his ship for the same Queen Anne who gave royal consent to the first British copyright act, the Statute of Anne, in 1710. In the same year, Bristol merchants completed a ship named Concord, which was later sold to French merchants who called it La Concorde. Blackbeard captured the ship in 1717, outfitted it with additional cannon, and renamed it Queen Anne’s Revenge, because he had served as a British privateer during the war against France and Spain that lasted for almost the whole of Queen Anne’s reign.
Allen v. Cooper raises a host of interesting issues regarding the relationship between the states and the federal government vis-à-vis copyright infringement and the ability of a state to declare a copyrighted work to be a “public record.” The U.S. Supreme Court granted certoriari only on a single threshold issue: whether the states have sovereign immunity from suits for copyright infringement under the Eleventh Amendment. Even if the Supreme Court rules in favor of sovereign immunity, as expected, the possibility of a state lawsuit for inverse condemnation remains. Thus, more than 300 years after the Queen Anne’s Revenge ran aground, her voyage through the American judicial system is far from over.
Post-Charlottesville Doxxing and Misidentification Creates Legal Risks–Vangheluwe v. GotNews
Am I reading that right? Did someone actually argue that they were reasonable in presenting something they found on 4Chan as fact? Indeed, the court is not persuaded by reliance on 4Chan. In the context of dealing with the “wire service” privilege, the court says it is “not convinced that 4Chan is a reputable news-gathering agency.” Not surprisingly, plaintiffs are able to present a plethora of evidence on the freewheeling nature of 4Chan.
Emoji Law 2018 Year-in-Review
As I’ve mentioned before, I track every U.S. court opinion in Westlaw and Lexis that references “emoji” or “emoticon.” This is not a comprehensive census for several reasons, including my inability to set up alerts when a court displays the symbol without calling it an emoji or emoticon (which, in many emoji cases, aren’t even displayed in Westlaw or Lexis) and the other known skews and limits of Westlaw’s and Lexis’ case collections. Still, FWIW, I’ve posted the updated roster of cases.
An Analysis of Title I and Title III of The Music Modernization Act
Title I is the Musical Works Modernization Act, or MWM Act, which revises the Section 115 compulsory license for musical works and establishes a new “mechanical licensing collective” to administer it. Title II is the Classics Protection and Access Act (or CPA Act, formerly known as the “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act,” or CLASSICS Act), which brings pre-1972 sound recordings mostly (but not completely) into the federal copyright system. Title III is the Allocation for Music Producers Act (or AMP Act), which amends the compulsory license for digital public performance rights for sound recordings to allocate a small portion of the proceeds to producers, mixers, and sound engineers.
Consumers Don’t Confuse Almond Milk and Cow Milk–Painter v. Blue Diamond
A putative class claimed Blue Diamond “mislabeled its almond beverages as ‘almond milk’ when they should be labeled ‘imitation milk’ because they substitute for and resemble dairy milk but are nutritionally inferior to it.” The lawsuit fails.
Screenshotting a Newspaper Page May Infringe a Licensed Photo–Hirsch v. Complex
Any opinion that starts out with the following introduction will get my attention: “This case, which is factually very straightforward but presents a whole host of legal issues, would — in the parlance of law school — make for a good issue-spotter examination.”
Once again, photos create unexpected legal problems for folks. The court says “For the first two seconds, the Photograph is clear as day, and its prominence unmistakable — it is the thing being featured in the video and takes up most of the screen.” News videos routinely show screenshots of third party newspaper coverage of the same topic. Usually the screenshot highlights the headline, though sometimes it highlights a pull quote. It’s unclear if screenshotting newspapers is categorically problematic. However, this opinion suggests that any collateral copyrighted material in the screenshot–such as a photo the newspaper licensed from a third party–is liability bait, no matter how briefly it’s shown. Fortunately, there is an obvious but suboptimal solution. Video producers taking screenshots of third party newspapers need to blur EVERYTHING–ESPECIALLY PHOTOS–other than the minimum they need to establish their point.
Everything You Wanted to Know About Emojis and the Law
For the past couple of years, I have invested significantly in all things emojis. This post rounds up everything I’ve done during that period.
Swedish Court Misunderstands Memes
But a recent decision by Sweden’s Advertising Ombudsman (RO), a “self-regulatory advertising watchdog,” attacked the Distracted Boyfriend meme not for its copyrighted status but for something else entirely: sexism. The meme at the time was not being used as a meme, but rather as an advertisement. Seeking applicants for open positions, Bahnhof, a Swedish ISP, used the Distracted Boyfriend meme, casting the girlfriend as “your current workplace” and the woman who catches the boyfriend’s attention as a new job at Bahnhof.
A Cautionary Tale of Sarcasm in Social Media–Ross v. City of Jackson
A cousin of the Facebook poster screenshotted the post before the poster deleted it. The cousin forwarded the screenshot to another cousin who forwarded it to her husband, a cop, who forwarded it to his police co-workers. Based solely on the screenshot and without doing any further investigation or interviewing Ross, the officers arrested Ross at work nearly 24 hours later, nominally on the basis that he had made a “true threat.” After the arrest, Ross explained his comment as a joke, but he was still jailed for several days and charged with “peace disturbance” before he posted a bond. A couple of months later, the charges were dropped.
Because screenshots can’t be faked.
In-Line Linking May Be Copyright Infringement–Goldman v. Breitbart News
Ugh, this decision is bad.
Plaintiff’s Location-Based Privacy Claim Against BART Reporting App Fails
BART, in cooperation with its police department and Elerts (a developer), created the “BART Watch” mobile application. The application allowed users to report suspicious activity by “sending pictures, text messages, and locations of suspicious people of activities.” However, the app periodically transmitted the user’s clientid and location information to the app’s servers. The app did not require a user to enter their mobile telephone number but left it optional. The app also had a mandatory click-through mechanism for contract formation. The terms mention location information sharing when a consumer filed a “report” but did not advise that the app allegedly tracked location information on a persistent basis:
Social Networking Site Isn’t Liable for User’s Overdose of Drugs He Bought Via the Site–Dyroff v. Ultimate Software
This opinion is a contender for the most interesting Section 230 ruling of 2017. It deals with the troubling situation of user-to-user online drug sales; it discusses the thorny language of what it means to “develop in part” content; it decisively rejects the latest anti-Section 230 theory that data mining and targeted content recommendations somehow foreclose the immunity; it emphatically rejects a “failure to warn” workaround to Section 230; and the judge embraces Internet exceptionalism. My apologies for the length of this blog post, but there is a lot to unpack in this opinion. If you’re a Section 230 enthusiast, this case deserves your careful attention.
Zazzle Loses Copyright Jury Verdict, and That’s Bad News for Print-on-Demand Publishers–Greg Young Publishing v. Zazzle
Greg Young Publishing licenses images for posters, many of which are beach- or surfing-themed. Zazzle users posted item listings that included the copyrighted images. Greg Young Publishing sued Zazzle. In a prior ruling, the court held that Section 512(c) applied to the photos in the online product listings, but not to the manufacture of goods bearing the image. Without Section 512 protection for the latter, the case proceeded to a jury trial.
The trial did not go well for Zazzle.
1H 2017 Quick Links, Part 5 (Advertising, Contracts)
Old news I guess, but a recap.