E-Commerce: Pros and Cons of Drop-Shipping

Drop-shipping is a popular business model in e-commerce where a retailer does not hold inventory but instead transfers customer orders and shipment details to a supplier or wholesaler, who then ships the products directly to the customer. While drop-shipping offers several advantages, it also comes with certain challenges. Let’s explore the pros and cons of drop-shipping:

Pros of Drop-shipping:

  1. Low Startup Costs: Drop-shipping eliminates the need to invest in inventory, warehousing, and shipping infrastructure, making it a cost-effective option for entrepreneurs with limited capital.
  2. Wide Product Range: As drop-shippers rely on suppliers with extensive inventories, they can offer a wide range of products without managing physical stock.
  3. Flexibility and Scalability: Drop-shipping allows businesses to test various product lines and adjust their offerings quickly based on customer demand. It also offers scalability without the limitations of managing inventory.
  4. Location Independence: Drop-shipping businesses can be managed from anywhere, as long as there is an internet connection. This allows for greater flexibility in work arrangements.
  5. Reduced Risk: Since the drop-shipper does not pre-purchase products, they are not exposed to the risk of unsold inventory or slow-moving goods.

Cons of Drop-shipping:

  1. Lower Profit Margins: Drop-shipping often involves lower profit margins compared to traditional retail models due to the additional costs involved in paying suppliers and shipping fees.
  2. Inventory and Product Quality Control: Drop-shippers rely on third-party suppliers for inventory, which can lead to challenges in monitoring product quality, availability, and shipping times.
  3. Order Fulfillment Challenges: As drop-shipping involves multiple parties, there is a risk of miscommunication and delays in order fulfillment, potentially leading to customer dissatisfaction.
  4. Branding and Customer Relationships: Drop-shippers have limited control over packaging, branding, and customer experience, which may impact their ability to build a strong brand and lasting customer relationships.
  5. Competitiveness: The low barriers to entry in drop-shipping can lead to increased competition, making it challenging to stand out in a crowded market.
  6. Supplier Reliability: The success of drop-shipping heavily relies on the reliability and efficiency of suppliers. If a supplier fails to deliver on time or experiences stock shortages, it can directly impact the drop-shipper’s business. Depending on your vendor’s terms of service, you may have little recourse for errors to boot.
  7. Profit Margin Compression: As more retailers enter the drop-shipping space, suppliers may increase product prices or charge additional fees, leading to reduced profit margins for the drop-shipper.

In conclusion, drop-shipping offers a flexible and cost-effective way to start an e-commerce business, but it also comes with inherent challenges. Entrepreneurs considering drop-shipping should carefully weigh the pros and cons to determine if this business model aligns with their goals and capabilities. Proper supplier selection, effective communication, and a focus on providing a positive customer experience can help mitigate some of the challenges associated with drop-shipping.

Disclaimer: This information is intended to be general advice and should not be relied upon as formal legal advice. If you are looking for legal advice as to your particular situation, please contact an attorney in your jurisdiction. If you’re located within the state of Arizona, consider contacting Beebe Law, PLLC.

Ninth Circuit says COPPA does not preempt state law claims – Jones v. Google

In this case, a class of children (“Children”), represented by their parents and guardians, filed a lawsuit against Google LLC, YouTube LLC, and several other companies, alleging violations of the Children’s Online Privacy Protection Act (COPPA). The Children claimed that Google used persistent identifiers (via targeted advertising) to collect data and track their online behavior without their consent, which violated state law and COPPA regulations. More specifically, Children are seeking “damages and injunctive relief, asserting only state law claims: invasion of privacy, unjust enrichment, consumer protection violations, and unfair business practices, arising under the constitutional, statutory, and common law of
California, Colorado, Indiana, Massachusetts, New Jersey, and Tennessee. The parties agree that all of the claims allege conduct that would violate COPPA’s requirement that child directed online services give notice and obtain “verifiable parental consent” before collecting persistent identifiers.” Google argued that it wasn’t subject to COPPA because YouTube is a “platform for adults” even though it knows that children use the platform. [Editor’s note: That sure does seem like a stretch of an argument given just how much content directed at children there is on that platform.]

The district court dismissed the case, citing preemption grounds (that is that the state law claims were preempted by COPPA, a federal regulation), but the Ninth Circuit Court of Appeals reversed the dismissal in an amended opinion.

The Court first considered whether COPPA preempted state law claims that were based on the same conduct prohibited by COPPA. The court noted that: “[e]xpress preemption is a question of statutory construction. COPPA’s preemption clause provides: ‘[n]o State or local government may impose any liability . . . that is inconsistent with the treatment of those activities or actions under this section.‘ 15 U.S.C. § 6502(d).” (emphasis in original) The court determined that state laws that supplement or require the same as federal law are not inconsistent and do not stand as an obstacle to Congress’s objectives. Thus, the court concluded that COPPA’s preemption clause does not bar state-law causes of action that are parallel to, or proscribe the same conduct forbidden by, COPPA.

The court also addressed conflict preemption, which occurs when state law conflicts with a federal statute. They found that conflict preemption did not apply in this case because the state law claims did not prevent or frustrate the accomplishment of COPPA’s federal objectives.

As a result, the Ninth Circuit reversed the district court’s dismissal of the case on preemption grounds and remanded it for further consideration of other arguments for dismissal.

Citation: Jones v. Google, LLC, Case No. 21-16281, 9th. Cir. (Jul. 13, 2023)

Disclaimer 1: This summary was initially generated by ChatGPT and then edited to include more specific information by a real human … because, you know, humans are still better than the machine tool.

Disclaimer 2: This is for general information purposes only. This should not be relied upon as formal legal advice. If you have a legal matter that you are concerned with, you should seek out an attorney in your jurisdiction who may be able to advise you of your rights and options.

The Temptation of ChatGPT for Legal Contracts: Why Human Expertise Reigns Supreme

Disclaimer: This article, while reviewed and slightly edited by a real live human prior to publication, was initially drafted by ChatGPT. Even ChatGPT knows its own limitations.

In this digital age, where technology continues to advance at a rapid pace, it’s no surprise that businesses and individuals seek innovative solutions for various tasks, including legal contract creation. With the rise of AI-powered language models like ChatGPT, one might be tempted to rely on them for generating legal contracts quickly and conveniently. However, while ChatGPT and similar tools offer impressive capabilities, there are significant reasons why they fall short when it comes to formal legal contract creation.

Understanding the Temptation

ChatGPT, with its ability to generate coherent and contextually relevant text, can be alluring for those seeking a quick solution for legal contract drafting. The convenience of inputting prompts and receiving instant responses may seem enticing, especially for individuals who are not well-versed in legal language or lack the resources for professional legal assistance. The prospect of saving time and money might make ChatGPT an appealing choice at first glance.

The Limitations of ChatGPT

  1. Lack of Contextual Understanding: While ChatGPT excels in understanding and generating text based on provided prompts, it lacks the ability to truly comprehend the nuances of legal contracts and their specific legal implications. It lacks a deep understanding of legal concepts, precedents, and regulations that are crucial for creating enforceable and comprehensive contracts.
  2. Legal Accuracy and Updates: Legal landscapes are dynamic, with laws, regulations, and court rulings subject to change. ChatGPT’s training data might not encompass the most up-to-date legal information, potentially leading to inaccuracies or outdated clauses in generated contracts. Attorneys stay abreast of legal developments and ensure that contracts align with current laws and regulations.
  3. Tailored and Specific Legal Advice: Legal contracts require a personalized touch to address the unique needs and circumstances of each client. ChatGPT, while proficient in generating text, cannot provide the tailored legal advice and expertise that an attorney can offer. Attorneys can carefully analyze a client’s situation, identify potential risks, and customize contracts accordingly.
  4. Complex Legal Language: Legal contracts often utilize specialized terminology and language that carry precise legal meanings. ChatGPT may not fully grasp the intricate nuances and subtleties of legal language, potentially resulting in ambiguous or poorly drafted provisions that could be exploited or lead to disputes.
  5. Confidentiality and Security: Legal contracts often involve sensitive and confidential information. Sharing such information with a third-party AI model might raise concerns regarding data privacy and security. Working with a trusted attorney ensures the confidentiality and protection of sensitive information.

The Indispensable Role of Human Expertise

While technology can undoubtedly enhance various aspects of our lives, legal contract creation necessitates the expertise, experience, and ethical judgment that only human attorneys can provide. Attorneys possess the legal knowledge, contextual understanding, and analytical skills required to create contracts that mitigate risks, protect client interests, and ensure compliance with applicable laws.

By engaging an attorney for legal contract creation, businesses and individuals can benefit from:

  1. Tailored Advice: Attorneys can assess unique circumstances, identify potential risks, and provide advice tailored to specific needs, ensuring contracts align with individual goals and requirements.
  2. Legal Compliance: Attorneys stay updated on legal changes and ensure that contracts adhere to current laws and regulations, reducing the risk of non-compliance and legal disputes.
  3. Clarity and Precision: Attorneys are skilled in crafting precise and unambiguous contract language, minimizing the potential for misinterpretation and reducing the likelihood of future disagreements.
  4. Risk Mitigation: Attorneys understand the potential risks associated with different types of contracts and can draft provisions that protect clients from liabilities and unforeseen circumstances.
  5. Dispute Resolution: In the unfortunate event of a contract dispute, attorneys provide legal representation and guidance, leveraging their expertise to achieve favorable outcomes through negotiation, mediation, or litigation.

While ChatGPT and similar AI language models have their merits, they cannot replace the indispensable role of human attorneys in the creation of formal legal contracts. The complexities, legal nuances, and individual circumstances involved in contract drafting necessitate the knowledge, experience, and personalized advice that only human legal professionals can provide. By seeking the guidance of an attorney, individuals and businesses can ensure the creation of enforceable, comprehensive, and customized contracts that protect their interests and mitigate legal risks.

[EDITOR NOTE: Look, we get it. Everyone wants a faster way to prepare content. Lawyers are no exception. That said, it’s important to understand the difference between when ChatGPT can be a useful tool, and when it’s best to have a set of trained legal eyes looking at and thinking about something. Legal documents are not the area where you want to cut corners. If you do, there is a good chance that you will be paying a lawyer to deal with a ChatGPT mess up … because, you know, ChatGPT makes up fake law and stuff. Don’t bet the company on ChatGPT … at least not yet.]

DISCLAIMER: This is for general information purposes only. This should not be relied upon as formal legal advice. If you have a legal matter that you are concerned with, you should seek out an attorney in your jurisdiction who may be able to advise you of your rights and options.

SCOTUS declines to rule on Section 230, again. – Gonzalez v. Google

The widely industry watched nail biter of a case, Gonzalez v. Google, has been ruled upon by the Supreme Court of the United States. Many advocates of Section 230 thought for sure that SCOTUS would ruin the application of Section 230 as we know it, however, that didn’t happen. Much to the dismay of many critics of Section 230, SCOTUS (and rightfully so under the facts of this case in my opinion) kicked the can on the issue of Section 230 and declined to address the question.

CASE SUMMARY:

In this case, the parents and brothers of Nohemi Gonzalez, a U.S. citizen killed in the 2015 coordinated terrorist attacks in Paris, sued Google, LLC under 18 U.S.C. §§2333(a) and (d)(2). They alleged that Google was directly and secondarily liable for the attack that killed Gonzalez. The secondary-liability claims were based on the assertion that Google aided and abetted and conspired with ISIS through the use of YouTube, which Google owns and operates.

The District Court dismissed the complaint for failure to state a claim but allowed the plaintiffs to amend their complaint. However, the plaintiffs chose to appeal without amending the complaint. The Ninth Circuit affirmed the dismissal of most claims, citing Section 230 of the Communications Decency Act, but allowed the claims related to Google’s approval of ISIS videos for advertisements and revenue sharing through YouTube to proceed.

The Supreme Court granted certiorari to review the Ninth Circuit’s application of Section 230. However, since the plaintiffs did not challenge the rulings on their revenue-sharing claims, and in light of the Supreme Court’s decision in Twitter, Inc. v. Taamneh, the Court found that the complaint failed to state a viable claim for relief. The Court acknowledged that the complaint appeared to fail under the standards set by Twitter and the Ninth Circuit’s unchallenged holdings. Therefore, the Court vacated the judgment and remanded the case to the Ninth Circuit for reconsideration in light of the Supreme Court’s decision in Twitter. [Author Note: If you listen to the oral argument, you’d see just how weak of a case was brought by Plaintiff].

In summary, the Supreme Court did not address the viability of the plaintiffs’ claims but indicated that the complaint seemed to fail to state a plausible claim for relief, and therefore, declined to address the application of Section 230 in this case. The case was remanded to the Ninth Circuit for further consideration.

DISCLAIMER & OTHER POINTS:

I’m currently sitting at the Tenth Annual Conference on Governance of Emerging Technology and Science. There is a lot of talk about AI, including ChatGPT. Because the Gonzalez opinion was so incredibly short by comparison, I thought I would test out ChatGPT’s ability to summarize this case. Having followed this case, and read the SCOTUS opinion myself, I was quite surprised with summary that it spit out, which is what you just read above. For those that want to read the case opinion for yourself (it’s only three pages) you can review the SCOTUS opinion linked to below. I’ve also included the link to the Twitter case as well (which is a more typical 38 page opinion). In case you are curious, I also asked ChatGPT to summarize the Twitter case, however, there is some sort of character limit as I received an error message about the request being too long. We’re all learning.

Citation: Gonzalez v. Google, 598 U.S. ___ (May 18, 2023)

Citation: Twitter v. Taamneh, 598 U.S. ___ (May 18, 2023)

DISCLAIMER: This is for general information purposes only. This should not be relied upon as formal legal advice. If you have a legal matter that you are concerned with, you should seek out an attorney in your jurisdiction who may be able to advise you of your rights and options.

Section 230 Protects Users Too – Monge v. Univ. of Pa.

One of the rarely discussed points, in the grand scheme of Section 230 chatter anyway, is the fact that Section 230 not only protects various interactive internet platforms, but it also protects users, just like you and me, on the various Internet platforms from third-party content. For example, if you’re an administrator/moderator of some random Facebook group … generally speaking, Section 230 protects you from legally actionable content that other users post in that group. Just like the interactive Internet platforms, you, as a user of the platform, also get some protections. This is also true, as this case will underscore, if you share an article via email that is alleged to be defamatory. Given the ease and frequency that people like to share information that they don’t necessarily read let alone fact check for themselves, you’d think this would be front and center in more discussions when trying to teach people that Section 230 isn’t all about protecting “big tech”.

To be clear, the fact that Section 230 protects users too isn’t just something determined by the courts through case law, but is something actually spelled out right in the language of the statute itself.

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

47 U.S.C. § 230(c)(1) (emphasis of bold and italics added)

The below information is based upon the information provided in the court opinion. I have no independent knowledge about the facts of this case.

Plaintiff: Janet Monge

Defendant: University of Pennsylvania, Deborah Thomas, et al.

HIGH LEVEL OVERVIEW

A University of Pennsylvania faculty member, Dr. Deborah Thomas, shared an article that allegedly defamed Dr. Monge via a list serve to an organization that Dr. Monge is a member of. Obviously upset about the situation Dr. Monge filed a lawsuit for claims of defamation, defamation by implication, false light, and civil aiding and abetting against defendants, including Dr. Thomas. Dr. Thomas filed a Fed. R. Civ. P., Rule 12(b)(6) motion to dismiss for failure to state a claim for which relief can be granted arguing that 47 U.S.C. § 230(c)(1) immunizes her from liability. The court agreed with Dr. Thomas and dismissed the action, with prejudice, i.e., dismissed those claims permanently.

THE LEGAL WEEDS

It is almost funny to say “legal weeds” here because this was an easy Section 230 win. The Court stated “[c]ourts analyzing and applying the CDA have consistently held that distributing, sharing, and forwarding content created and/or developed by a third party is conduct immunized by the CDA” and then goes on to cite six cases supporting this position relating to content that was shared in an internet chat room, via email, and other technologies. The Court similarly dismissed Dr. Monge’s “material contribution” argument, suggesting that Dr. Thomas materially contributed to the alleged defamatory statements by including her own commentary in the email forwarding the articles. The Court’s rationale was that Dr. Thomas “did not add anything new to the articles, or materially modify them, when she shared them via email, so she did not materially contribute to the alleged defamation. The Court again cited to multiple cases supporting this point. Based upon these points, the Court rightfully concluded “Dr. Thomas’s conduct of sharing the allegedly defamatory articles via email is immune from liability under the CDA.”

SUMMARY OF THOUGHTS

As mentioned before, this was an easy Section 230 win. Ironically, this is also one of those instances where you see a Plaintiff upset about the content of something end up making the matter a bigger deal by filing a lawsuit where now you have legal academics talking about the situation which is a prime example of the Streisand effect. I can understand in general why Plaintiffs want to set the record straight when they believe false information has been put out about them. On the other hand, if you’re going to take it to court, it is important to realize that such action often shines a lot of light on an issue that you might rather have just kept to a smaller audience.

Citation: Monge v. Univ. of Pa., Case No. 22-2942 (E.D. Pa. March 10, 2023)

DISCLAIMER: This is for general information purposes only. This should not be relied upon as formal legal advice. If you have a legal matter that you are concerned with, you should seek out an attorney in your jurisdiction who may be able to advise you of your rights and options.

NY District Court Swings a Bat at “The Hateful Conduct Law” – Volokh v. James

This February14th (2023), Valentine’s Day, the NY Federal District Court showed no love for New York’s Hateful Conduct Law when it granted a preliminary injunction to halt it. So this is, to me, an exceptionally fun case because it includes not only the First Amendment (to the United States Constitution) but also Section 230 of the Communications Decency Act, 47 U.S.C. § 230. I’m also intrigued because renowned Eugene Volokh, Locals Technology, Inc., and Rumble Canada, Inc. are the Plaintiffs. If Professor Volokh is involved, it’s likely to be an interesting argument. The information about the case below has been pulled from the Court Opinion and various linked websites.

Plaintiffs: Eugene Volokh, Locals Technology, Inc., and Rumble Canada, Inc.

Defendant: Letitia James, in her official capacity as New York Attorney General

Case No.: 22-cv-10195 (ALC)

The Honorable Andrew L. Carter, Jr. started the opinion with the following powerful quote:

 “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

Matal v. Tam, 137 S.Ct. 1744, 1764 (2017) 

Before we get into what happened, it’s worth taking a moment to explain who the Plaintiffs in the case are. Eugene Volokh (“Volokh”) is a renowned First Amendment law professor at UCLA. In addition, Volokh is the co-owner and operator of the popular legal blog known as the Volokh Conspiracy. Rumble, operates a website similar to YouTube which allows third-party independent creators to upload and share video content. Rumble sets itself apart from other similar platforms because it has a “free speech purpose” and it’s “mission [is] ‘to protect a free and open internet’ and to ‘create technologies that are immune to cancel culture.” Locals Technology, Inc. (“Locals”) is a subsidiary of Rumble and also operates a website that allows third party-content to be shared among paid, and unpaid, subscribers. Similar to Rumble, Locals also reports having a “pro-fee speech purpose” and a “mission of being ‘committed to fostering a community that is safe, respectful, and dedicated to the free exchange of ideas.” Suffice it to say, the Plaintiffs are no stranger to the First Amendment or Section 230. So how did these parties become Plaintiffs? New York tried to pass a well intentioned, but arguably unconstitutional, law that could very well negatively impact them.

On May 14th last year, 2022, some random racist nut job used Twitch (a social media site) to livestream himself carrying out a mass shooting on shoppers at a grocery store in Buffalo, New York. This disgusting act of violence left 10 people dead and three people wounded. As with most atrocities, and with what I call the “train wreck effect”, this video went viral on various other social media platforms. In response to the atrocity New York’s Governor Kathy Hochul kicked the matter over to the Attorney General’s Office for investigation with an apparent instruction to focus on “the specific online platforms that were used to broadcast and amplify the acts and intentions of the mass shooting” and directed the Attorney General’s Office to “investigate various online platforms for ‘civil or criminal liability for their role in promoting, facilitating, or providing a platform to plan or promote violence.” Apparently the Governor hasn’t heard about Section 230, but I’ll get to that in a minute. After investigation, the Attorney General’s Office released a report, and later a press release, that stated “[o]nline platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms” because an alleged “lack of oversight, transparency, and accountability of these platforms allows hateful and extremist views to proliferate online.” This is where one, having any knowledge about this area of law, should insert the facepalm emoji. If you aren’t familiar with this area of law, this will help explain (a little – we’re trying to keep this from being a dissertation).

Now no reasonable person will disagree that this event was tragic and disgusting. Humans are weird beings and for whatever reason (though I suspect a deep dive into psychology would provide some insight), we cannot look away from a train wreck. We’re drawn to it like a moth to a flame. Just look at any news organization and what is shared. You can’t tell me that’s not filled with “train wreck” information. Don Henley said it best in his lyrics in the 1982 song Dirty Laundry, talking about the news: “she can tell you about the plane crash with a gleam in her eye” … “it’s interesting when people die, give us dirty laundry”. A Google search for the song lyrics will give you full context if you’re not a Don Henley fan … but even 40 plus years later, this is still a truth.

In effort to combat the perceived harms from the atrocity that went viral, New York, on December 3, 2022 enacted The Hateful Conduct Law, entitled “Social media networks; hateful conduct prohibited.” What in the world does that mean? Well, the law applies to “social medial networks” and defined “hateful conduct” as: “[T]he use of a social media network to vilify, humiliate, incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” N.Y. Gen. Bus. Law § 394-ccc(1)(a). Okay, but still ..

In explaining The Hateful Conduct Law, and as the Court’s opinion (with citations omitted) explains:

[T]he Hateful Conduct Law requires that social media networks create a complaint mechanism for three types of “conduct”: (1) conduct that vilifies; (2) conduct that humiliates; and (3) conduct that incites violence. This “conduct” falls within the law’s definition if it is aimed at an individual or group based on their “race”, “color”, “religion”, “ethnicity”, “national origin”, “disability”, “sex”, “sexual” orientation”, “gender identity” or “gender expression”.

The Hateful Conduct Law has two main requirements: (1) a mechanism for social media users to file complaints about instances of “hateful conduct” and (2) disclosure of the social media network’s policy for how it will respond to any such complaints. First, the law requires a social media network to “provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct.” This mechanism must “be clearly accessible to users of such network and easily accessed from both a social media networks’ application and website. . . .” and must “allow the social media network to provide a direct response to any individual reporting hateful conduct informing them of how the matter is being handled.” N.Y. Gen. Bus. Law § 394-ccc(2).

Second, a social media network must “have a clear and concise policy readily available and accessible on their website and application. . . ” N.Y. Gen. Bus. Law § 394-ccc(3). This policy must “include how such social media network will respond and address the reports of incidents of hateful conduct on their platform.” N.Y. Gen. Bus. Law § 394-ccc(3).

The law also empowers the Attorney General to investigate violations of the law and provides for civil penalties for social media networks which “knowingly fail to comply” with the requirements. N.Y. Gen. Bus. Law § 394-ccc(5).

Naturally this raised a lot of questions. How far reaching is this law? Who and what counts as a “social media network”? What persons or entities would be impacted? Who decides what is “hateful conduct”? Does the government have the authority to try and regulate speech in this way?

Two days before the law was to go into effect, on December 1, 2022, the instant action was commenced by the Plaintiffs alleging both facially, and as-applied, challenges to The Hateful Conduct Law. Plaintiffs argued that the law “violates the First Amendment because it: (1) is a content viewpoint-based regulation of speech; (2) is overbroad; and (3) is void for vagueness. Plaintiffs also alleged that the law is preempted by” Section 230 of the Communications Decency Act.

For the full discussion and analysis on the First Amendment arguments, it’s best to review the full opinion, however, the Court’s opinion opened with the following summary of its position (about the First Amendment as applied to the law):

“With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media, the New York State legislature enacted N.Y. Gen. Bus. Law § 394-ccc (“the Hateful Conduct Law” or “the law”). Yet, the First Amendment protects from state regulation speech that may be deemed “hateful” and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal.”

With respect to the preemption argument made by Plaintiffs, that is that Section 230 of the Communications Decency Act preempts the law because it imposes liability on websites by treating them as publishers. As the Court outlines (some citations to cases omitted):

The Communications Decency Act provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The Act has an express preemption provision which states that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).

As compared to the section of the Opinion regarding the First Amendment, the Court gives very little analysis on the Section 230 preemption claim beyond making the following statements:

“A plain reading of the Hateful Conduct Law shows that Plaintiffs’ argument is without merit. The law imposes liability on social media networks for failing to provide a mechanism for users to complain of “hateful conduct” and for failure to disclose their policy on how they will respond to complaints. N.Y. Gen. Bus. Law § 394-ccc(5). The law does not impose liability on social media networks for failing to respond to an incident of “hateful conduct”, nor does it impose liability on the network for its users own “hateful conduct”. The law does not even require that social media networks remove instances of “hateful conduct” from their websites. Therefore, the Hateful Conduct Law does not impose liability on Plaintiffs as publishers in contravention of the Communications Decency Act.” (emphasis added)

Hold up sparkles. So the Court recognizes the fact that platforms cannot be held liable (in these instances anyway) for third-party content, no matter how ugly that content might be, but yet wants to force (punish in my opinion) a platform by forcing them to spend big money on development to create all these content reporting mechanisms, and set transparency policies, for content that they actually have no legal requirement to remove? How does this law make sense in the first place? What is the point (besides trying to trap them into having a policy that if they don’t follow could give rise to an action for unfair or deceptive advertising)? This doesn’t encourage moderation. In fact, I’d argue that it does the opposite and encourages a website to say “we don’t do anything about speech that someone claims to be harmful because we don’t want liability for failing to do so if we miss something.” In my mind, this is a punishment, based upon third-party content. You don’t need a “reporting mechanism” for content that people aren’t likely to find offensive (like cute cat videos). To this end, I can see why Plaintiffs raised a Section 230 preemption argument … because if you drill it down, the law is still trying to force websites to take an action to deal with undesirable third-party content (and then punish them if they don’t follow whatever their policy is). In my view, it’s an attempt to do an end run around Section 230. The root issue is still undesirable third-party content. Consequently, I’m not sure I agree with the Court’s position here. I don’t think the court drilled down enough to the root of the issue.

Either way, the Court did, as explained in the beginning, grant Plaintiff’s Motion for Preliminary Injunction (based upon the First Amendment arguments) which, at current, prohibits New York from trying to enforce the law.

Citation: Volokh v. James, Case No. 22-cv-10195 (ALC) (S.D.N.Y., Feb. 14, 2023)

DISCLOSURE: This is not mean to be legal advice nor should it be relied upon as such.

Pro Se’s kitchen sink approach results in a loss – Lloyd v. Facebook

The “kitchen sink approach” isn’t an uncommon complaint claim strategy when it comes to filing lawsuits against platforms. Notwithstanding decades of precedent clearly indicating that such efforts are doomed to fail, plaintiffs still give it the ole’ college try. Ironically, and while this makes more sense with pro se plaintiffs because they don’t have the same legal training and understanding of how to research case law, pro se plaintiffs aren’t the only ones who try it … no matter how many times they lose. Indeed, even some lawyers like to get paid to make losing arguments. [Insert the hands up shrug emoji here].

Plaintiff: Susan Lloyd

Defendants: Facebook, Inc.; Meta Platforms, Inc.; Mark Zuckerberg (collectively, “Defendants”)

In this instance Plaintiff is a resident of Pennsylvania who suffers from “severe vision issues”. As such, she qualified as “disabled” under the Americans with Disabilities Act (“ADA”). Ms. Lloyd, like approximately 266 million other Americans, uses the Facebook social media platform, which as my readers likely know, is connected to, among other things, third-party advertisements.

While the full case history isn’t recited in the Court’s short opinion, it’s worth while to point out (it appears anyway with the limited record before me at this time) that the Plaintiff was afforded the opportunity to amend her complaint multiple times as the Court cites to the Third Amended Complaint (“TAC”). According to the Court Order, the TAC alleged claims violations of:

Plaintiff alleged problems with the platform – suggesting it inaccessible to disabled individuals with no arms or problems with vision (and itemized a laundry list of issues that I won’t cite here … but suffice it to say that there was a complaint about the font size not being able to be made larger). [SIDE NOTE: For those that are unaware, website accessibility is a thing, and plaintiffs can, and will, try to hold website operators (of all types, not just big ones like Facebook) accountable if they deem there to be an accessibility issue. If you want to learn a little more, you can read information that is put out on the Beebe Law website regarding ADA Website Compliance.]

Plaintiff alleged that the advertisements on Facebook were tracking her without her permission … except that users agree to Facebook’s Terms of Service (which presumably allow for that since the court brought it up). I’m not sure at what point people will realize that if you are using something for free, you ARE the product. Indeed, there are many new privacy laws being put into place throughout various states (e.g., California, Colorado, Utah, Virginia and Connecticut) but chances are, especially with large multi-national platforms, they are on top of the rules and are ensuring their compliance. If you aren’t checking your privacy settings, or blocking tracking pixels, etc., at some point that’s going to be on you. Technology gives folks ways to opt out – if you can locate it. I realize that sometimes these things can be hard to find – but often a search on Google will land you results – or just ask any late teen early 20s person. They seem to have a solid command on stuff like this these days.

Plaintiff also alleged that Defendants allowed “over 500 people to harass and bully Plaintiff on Facebook.” The alleged allegations of threats by the other users are rather disturbing and won’t be repeated here (though you can review the case for the quotes). However, Plaintiff stated that each time that she reported the harassment she, and others, were told that it didn’t violate community standards. There is more to the story where things have allegedly escalated off-line. The situation complained about, if true, is quite unsettling … and anyone with decency would be sympathetic to Plaintiff’s concerns.

[SIDE NOTE: Not to suggest that I’m suggesting what happened, if true, wasn’t something that should be looked at and addressed for the future. I’m well aware that Facebook (along with other social media) have imperfect systems. Things that shouldn’t be blocked are blocked. for example, I’ve seen images of positive quotes and peanut butter cookies be blocked or covered from initial viewing as “sensitive”. On the other hand, I’ve also seen things that (subjectively speaking but as someone who spent nearly a decade handling content moderation escalations) should be blocked, that aren’t. Like clearly spammy or scammer accounts. We all know them when we see them yet they remain even after reporting them. I’ve been frustrated by the system myself … and know well both sides of that argument. Nevertheless, if one was to take into account the sheer volume of posts and things that come in you’d realize that it’s a modern miracle that they have any system for trying to deal with such issues at all. Content moderation at scale is incredibly difficult.]

Notwithstanding the arguments offered, the court was quick to procedurally dismiss all but the breach of contract claim because the claims were already dismissed prior (Plaintiff apparently re-plead the same causes of action). More specifically, the court dismissed the ADA and Rehabilitation claim because (at least under the 9th Cir.) Facebook is not a place of public accommodation under Federal Law. [SIDE NOTE: there is a pretty deep split in the circuits on this point – so this isn’t necessarily a “get out of jail free” card if one is a website operator – especially if one may be availing themselves to the jurisdiction of another circuit that wouldn’t be so favorable. Again, if you’re curious about ADA Website Compliance, check out the Beebe Law website]. Similarly, Plaintiff’s Unruh Act claim failed because the act doesn’t apply to digital-only website such as Facebook. Plaintiff’s fraud and intentional misrepresentation claims failed because there wasn’t really any proof that Facebook intended to defraud Plaintiff and only the Terms of Service were talked about. So naturally, if you can’t back up the claims, it ends up being a wasted argument. Maybe not so clear for Pro Se litigants, but this should be pretty clear to lawyers (still doesn’t keep them from trying). Plaintiff’s claims for invasion of privacy, negligence, and negligent infliction of emotional distress failed because they are barred by Section 230 of the Communications Decency Act, 47 U.S.C. § 230. Again, this is another one of those situations where decades of precedent contrary to a plaintiff’s position isn’t a deterrent from trying to advance such claims anyway. Lastly, the claims against Zuckerberg were dismissed because Plaintiff didn’t allege that he was personally involved or directed the challenged acts (i.e., he isn’t an “alter ego”).

This left the breach of contract claim. Defendants in this case argued that Plaintiff’s claim for breach of contract should be dismissed because the Court lacks diversity jurisdiction over the claim because she cannot meet the amount in controversy. As the Court explains, “28 U.S.C. §1332 grants federal courts’ original jurisdiction over civil actions where the amount in controversy exceeds $75,000 and the parties are citizens of different states.” Indeed, they are parties are from different states, however, that requirement that the amount in controversy is to exceed $75,000 is where Plaintiff met an impossible hurdle. As discussed prior, users of Facebook all agree to Facebook’s Terms of Service. Here, Plaintiff’s claim for breach of contract is based on conduct of third-party users and Facebook’s Terms of Service disclaim all liability for third-party conduct. Further, the TOS also provide, “aggregate liability arising out of.. .the [TOS] will not exceed the greater of $100 or the amount Plaintiff has paid Meta in the past twelve months.” Facebook having been around the block a time or two with litigation have definitely refined their TOS over the years to make it nearly impenetrable. I mean, never say never, BUT…good luck. Lastly, the TOS precludes damages for “lost profits, revenues, information, or data, or consequential, special indirect, exemplary, punitive, or incidental damages.” Based upon all of these issues, there is no legal way that Plaintiff could meet the required amount in controversy of $75,000. The Court dismissed the final remaining claim, breach of contract, without leave to amend, although the court did add in “[t]he Court expresses no opinion on whether Plaintiff may pursue her contract claim in state court.” One might construe that as a sympathetic signal to the Plaintiff (or other future Plaintiffs)…

There are a few takeaways from this case, in my opinion:

  1. Throwing garden variety kitchen sink claims at platforms, especially ones the size of Facebook, is likely to be a waste of ink on paper on top of the time it takes to even put the ink on the paper in the first place. If you have concerns about issues with a platform, engage the services of an Internet lawyer in your area that understands all of these things.
  2. Properly drafted, and accepted, Terms of Service for your website can be a huge shield from liability. This is why copying and pasting from some random whatever site or using a “one-size-fits-all” free form from one of those “do-it-yourself” sites is acting penny wise and pound foolish. Just hire a darn Internet lawyer to help you if you’re operating a business website. It can save you money and headache in the long run – and investment into the future of your company if you will.
  3. Website Accessibility, and related claims, is a thing! You don’t hear a lot about it because the matters don’t typically make it to court. Many of these cases settle based upon demand letters for thousands of dollars and costly remediation work … so don’t think that it can’t happen to you (if you’re operating a website for your business).

Citation: Lloyd v. Facebook, Inc., Case No. 21-cv-10075-EMC (N.D. Cal, Feb. 7, 2023)

DISCLAIMER: This is for general information only. This is not legal advice nor should it be relied upon as such. If you have concerns regarding your own specific situation, be sure to reach out to an attorney in your jurisdiction who may be able to advise you of your rights.

GoDaddy not liable for third-party snagging prior owned domain – Rigsby v. GoDaddy Inc.

This case should present as a cautionary tale of why you want to ensure you’ve got your auto-renewals on, and you’re ensuring the renewal works, for your website domains if you plan on using them long term for any purpose. Failing to renew timely (or ensuring there is actual renewal) can have unintended frustrating consequences.

Plaintiffs-Appellants: Scott Rigsby and Scott Rigsby Foundation, Inc. (together “Rigsby”).

Defendants-Appellees: GoDaddy, Inc., GoDaddy.com, LLC, and GoDaddy Operating Company, LLC and Desert Newco, LLC (together “GoDaddy”).

Scott Rigsby is a physically challenged athlete and motivational speaker who started the Scott Rigsby Foundation. In 2007, in connection with the foundation he registered the domain name “scottrigsbyfoundation.org” with GoDaddy.com. Unfortunately, and allegedly as a result of a glitch in GoDaddy’s billing system, Rigsby failed to pay the annual renewal fee in 2018. In these instances, typically the domain will then be free to purchase by anyone and this is exactly what happened – a third-party registered the then-available domain name and turned it into a gambling information site. Naturally this is a very frustrating situation for Rigsby.

Rigsby then decided to sue GoDaddy for violations of the Lanham Act, 15 U.S.C. § 1125(a) (which for my non-legal industry readers is the primary federal trademark statute in the United States) and various state laws and sought declaratory and injunctive relief including return of the domain name.

This legal strategy is most curious to me because they didn’t name the third-party that actually purchased the domain and actually made use of it. For those that are unaware, “use in commerce” by the would be trademark infringer is a requirement of the Lanham Act and it seems like a pretty long leap to suggest that GoDaddy was the party in this situation that made use of subject domain.

Rigsby also faced another hurdle, that is, GoDaddy has immunity under the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) (“ACPA”). The ACPA limits the secondary liability of domain name registrars and registries for the act of registering a domain name. Rigsby would be hard pressed to show that GoDaddy registered, used, or trafficked in his domain name with a bad faith intent to profit. Similarly, Rigsby would also be hard pressed to show that GoDaddy’s alleged wrongful conduct surpassed mere registration activity.

Lastly, Rigsby faced a hurdle when it comes to Section 230 of the Communications Decency Act, 47 U.S.C. § 230. I’ve written about Section 230 may times in my blogs, but in general Section 230 provides immunity to websites/platforms from claims stemming from the content created by third-parties. To be sure, there are some exceptions, including intellectual property law claims. See 47 U.S.C. § 230(e)(2) there wasn’t an act done by GoDaddy that would fairly sit square within the Lanham Act such that they would have liability. So this doesn’t apply. Additionally, 47 U.S.C. § 230(e)(3) preempts state law claims. Put another way, with a few exceptions, a platform will also avoid liability from various state law claims. As such, Section 230 would shield GoDaddy from liability for Rigsby’s state-law claims for invasion of privacy, publicity, trade libel, libel, and violations of Arizona’s Consumer Fraud Act. These are garden variety tort law claims that plaintiff’s will typically assert in these kinds of instances, however, plaintiffs have to be careful that they are directed at the right party … and it’s fairly rare that a platform is going to be the right party in these situations.

The District of Arizona dismissed all of the claims against GoDaddy and Rigsby then appealed the dismissal to the Ninth Circuit Court of Appeals. While sympathetic to the plight of Rigsby, the court correctly concluded, on February 3, 2023, that Rigsby was barking up the wrong tree in terms of who they named as a defendant and appropriately dismissed the claims against GoDaddy.

To read the court’s full opinion which goes into greater detail about the facts of this case, click on the citation below.

Citation: Rigsby v. GoDaddy, Inc., Case No. 21016182 (9th Cir. Feb. 3, 2023)

DISCLAIMER: This is for general information only. None of this is meant to be legal advice nor should it be relied upon as such.

Section 230 doesn’t protect against a UGC platform’s own unlawful conduct – Fed. Trade Comm’n v. Roomster Corp

This seems like a no-brainer to anyone who understands Section 230 of the Communications Decency Act but for some reason it still hasn’t stopped defendants from making the tried and failed argument that Section 230 protects a platform from their own unlawful conduct.

Plaintiffs: Federal Trade Commission, State of California, State of Colorado, State of Florida, State of Illinois, Commonwealth of Massachusetts, and State of New York

Defendants: Roomster Corporation, John Shriber, indivudally and officer of Roomster, and Roman Zaks, individually and as an officer of Roomster.

Roomster (roomster.com) is an internet-based (desktop and mobile app) room and roommate finder platform that purports to be an intermediary (i.e., the middle man) between individuals who are seeking rentals, sublets, and roommates. For anyone that has been around for a minute in this industry, you might be feeling like we’ve got a little bit of a Roommates.com legal situation going on here but it’s different. Roomster, like may platforms that allows third-party content also known as User Generated Content (“UGC”) platforms, does not verify listings or ensure that the listings are real or authentic and has allegedly allowed postings to go up where the address of the listing was a U.S. Post Office. Now this might seem out of the ordinary to an every day person reading this, but I can assure you, it’s nearly impossible for any UGC platform to police every listing, especially if they are a small company and have any reasonable volume of traffic and it would become increasingly hard to try and moderate as they grow. That’s just the truth of operating a UGC platform.

Notwithstanding these fake posting issues, Plaintiffs allege that Defendants have falsely represented that properties listed on the Roomster platform are real, available, and verified. [OUCH!] They further allege that Defendants have created or purchased thousands of fake positive reviews to support these representations and placed fake rental listings on the Internet to drive traffic to their platform. [DOUBLE OUCH!] If true, Roomster may be in for a ride.

The FTC has alleged that Defendants’ acts or practices violate Section 5(a) of the FTC Act, 15 U.S.C. § 45(a) (which in layman terms is the federal law against unfair methods of competition) and the states have alleged the various state versions of deceptive acts and practices. At this point, based on the alleged facts, it seems about right to me.

Roomster filed a Motion to Dismiss pursuant to Rule 12(b)(6) for Plaintiffs alleged failure to state a claim for various reasons that I won’t discuss, but you can read about in the case, but also argued that “even if Plaintiffs may bring their claims, Defendants cannot be held liable for injuries stemming from user-generated listings and reviews because … they are interactive computer service providers and so are immune from liability for inaccuracies in user-supplied content, pursuant to Section 230 of the Communications Decency Act, 47 U.S.C. § 230.” Where is the facepalm emoji when you need it? Frankly, that’s a “hail-mary” and total waste of an argument … because Section 230 does not immunize a defendant from liability from its own unlawful conduct. Indeed, a platform can be held liable for for offensive content on its service or system if it contributes to the development of what makes the content unlawful. This is also true where a platform has engaged in deceptive practices, or has had direct participation in a deceptive scheme. Fortunately, like many courts before it, the court in this case saw through the crap and rightfully denied the Motion to Dismiss on this (and other points).

I smell a settlement in the air, but only time will tell.

Case Citation: Fed. Trade Comm’n v. Roomster Corp., Case No. 22 Civ 7389 (S.D. N.Y., Feb. 1, 2023)

DISCLAIMER: This is for general information only. None of this is meant to be legal advice nor should it be relied upon as such.

Anti-SLAPP Laws Without Mandatory Award of Fees and Costs is a Hinderance to the Access to Justice and Chills Free Speech

Arizona recently passed a new anti-SLAPP law, 2022 Ariz. HB 2722 (it’s not in effect yet and won’t be for a few months at least) and while a colleague of mine and are are working on a more comprehensive discussion about anti-SLAPP and this new law specifically (which I will link here once done and/or you can always follow me here or on various social media to get the latest) as I was writing the initial draft of that article this week I became more and more frustrated. Anti-SLAPP laws without a mandatory award of attorneys fees and costs to the prevailing party of such motion is a hindrance to the access to justice for real victims of SLAPP suits and chills free speech. How? Let me elaborate.

I should preface this with the fact that I spent the better part of a decade working as in-house counsel of an interactive online forum and I’ve pretty much seen it all when it comes to true victims sharing their honest stories (and being threatened because if it) and bad actors using the Internet as a source of revenge (where people are desperate to make the harassment stop and to remove untruthful, hurtful, information from the platform). As such, my opinion is through a lens of having heard countless stories from all sides.

Generally speaking (obviously there are always outliers) those who lawfully criticize wrongdoers, especially online, do so because they don’t have the means to file suit regarding the experience that led to the criticism. Complaining online is their remedy. If those being criticized are powerful and/or wealthy, it’s really easy to say “Take that content down or I’ll sue you.” Many Americans are living paycheck to paycheck, but even if they are comfortably above that, they often cannot afford to be sued. Just look at how long it took to get through the Depp/Heard case. Granted, that was where two parties were heavily pushing back on who was right … but this is not unlike many civil cases. In fact, the behaviors exhibited in that court room and on display for the watching world to see is not all that unusual for litigating parties. The only difference there is that it was televised and people care enough about celebrity dirt to watch the case unfold on live television/online streaming.

But if you aren’t a celebrity or wealthy individual … if you cannot afford to fight back through expensive lawyers, even if you’re in the right … what do you do? Chances are you begrudgingly remove the content to save your own pocket book, or worse, lose a legal action and end up with a, albeit by default, judgment against you if you cannot, for whatever reason (and there are many reasons) don’t appear in a case. Ahh, yes … the threat of a SLAPP suit is indeed a huge and powerful sword.

But what happens if you cannot remove the content because the website’s terms of service prohibit it, or such posting has been scraped and put up elsewhere such that you do not have control over it? Oh yes, this happens all the time online. People don’t read Terms of Service and unfortunately, copy cat websites scrape content that isn’t theirs. In this instance, chances are, you will get sued anyway. Why? Because it’s worth it for the wealthy/powerful to try to get a court order to remove the content from the internet and they can’t do that without a suit. After all, many platforms will honor court orders for content removal even if they are obtained by default.

And in a lot of ways, this makes sense. Especially when bad actors/defamers hide behind anonymous accounts and/or are in foreign countries that make pursuing the perpetrator cost prohibitive or near impossible for real victims. Real victims need relief and this is one such pathway to remedy. On the other hand, for the truth tellers, it can be hard to stand up to wealthy/powerful bad actors when faced with a lawsuit. Those who speak up honestly can get the short end of the stick. If a suit is filed, and they can’t afford to defend against it, are they to be victimized yet again by default? I know it happens. I’ve seen it happen. Let me give you an example.

Imagine with me for a moment that you are a business owner of a new start-up company called Cool Business, LLC operating in Arizona, and you want to engage the services of a advertising company. Your friend, Tim, gives you the name of Great Advertising Co. based out of New York. A New York advertising company sounds fancy and you think they will probably do a far better job than anyone here in little Arizona so you reach out to them. The conversation goes great, they send you a basic contract to sign for the work to be done for Cool Business, LLC and require a $6,000.00 deposit so they can get started on the work and another $4,000.00 in 90 days for a total contract of $10,000.00 over three months. You skim the agreement, gloss over the headings of the boilerplate terms (because they’re all the same, right?), sign it and send them the $6,000.00. Everything goes great at first, but months into the relationship, and dozens of calls later, you realize that Great Advertising Co. is flakey. They aren’t delivering the services on time, there is always an excuse for why the work isn’t done, but when the 90 days hits, they still ask for their additional $4,000.00 pursuant to the contract. The business relationship at this point has soured. Great Advertising Co. demands their additional $4,000.00 under the contract, which you refuse to pay, and you instead demand a refund of your $6,000.00. Great Advertising Co. refuses to refund you the $6,000.00. Pissed off, you take your story to your favorite business attorney in Arizona and she reviews your contract and advises you that while you may have a breach of contract claim, the terms of your contract say that you agree to litigate any matters stemming from the agreement in a court in New York and that because the contract is with Cool Business, LLC that you’d have to hire a lawyer, in the state of New York, to handle the matter for you because businesses have to be represented by a lawyer in the court that you’d have to file in. Knowing that New York lawyers can be very expensive, you decide it’s not worth the hassle and to cut your losses. Understandably being upset, however, you take to the Internet to tell everyone you know how, truthfully, Great Advertising Co. ripped you off and you explain in detail what happened. You post your reviews to Google, Yelp, Facebook and any other place you can find to help spread the word about these unscrupulous business tactics and you leave it at that. Ten months later you receive a letter from a Great Advertising Co.’s New York lawyer telling you that you need technically still owe the $4,000.00 under the contract and that Great Advertising Co. doesn’t appreciate the negative reviews and demands that you immediately remove them or they will file a lawsuit against you for defamation. You ignore the letter because you know that you have a good breach of contract case and the First Amendment on your side because what you said was 100% the truth and you know, after talking to your favorite defamation attorney a few years back, you know that the truth is a defense to a claim of defamation. A day prior to the one year anniversary of your pissed off customer online posting tirade you are served with a complaint, based out of New York for defamation. You’ve watched the Johnny Depp and Amber Heard defamation trial. You saw how long that case was drug out and you know that you don’t have the funds to pay an attorney to fight for your rights in New York. You didn’t even have the funds to hire a New York attorney to bring a breach of contract case against Great Advertising Co. to try and get your $6,000.00 back. As such, feeling defeated, and without talking to your favorite defamation attorney again, you just ignore the complaint. You figure, what’s the worst that can happen. Great Advertising Co. obtains a default judgment against you individually with an order to take down the content and the judge awards $2,500.00 in damages.

Now, this entire hypothetical, while obviously facts have been changed and such, is based off a true story of what one individual experienced and how these types of situations can go south in a hurry. There are countless similar stories just like this out there. Good folks are victimized not just once, by the initial acts, but twice in some instances like in this hypothetical. But this is where good anti-SLAPP laws come into play.

Anti-SLAPP laws are designed to fight back against those who file lawsuits just to try and silence their critics, but without the promise of attorney fees and costs for the work, victims of little means are hard pressed to find lawyers willing to help (hence the hinderance to access to justice). The sad truth is that most lawyers (like most professions) cannot afford to work for free – being a professional is expensive and it’s not getting any cheaper. When anti-SLAPP laws include such fee provisions, it’s a lot easier for attorneys to consider taking on a SLAPP case, with low or no money down, case because they know they will get paid when they win. This is of course presuming it’s a deep pocket that filed the SLAPP in the first place because the reality is a judgment is only worth one’s ability to collect.

When anti-SLAPP laws fail to include such provisions, there is little deterrent to filing a SLAPP suit. Yes, if the little person being picked on has means, maybe they will think twice but that’s not often the case and the SLAPP filers know, and bank on, the litigation causing financial hardship or stress so that the truth teller will simply give in to the demands to remove the content prior to even answering the complaint, thus chilling truthful speech. It’s a powerful tactic. If it wasn’t, there wouldn’t be so many states with anti-SLAPP laws trying to curb such problems in the first place.

As many legal practitioners are painfully aware, it can be very difficult to get a judge to award attorneys fees and costs absent it being statutorily required. So even if you fight against a SLAPP suit, and win, you could still be out tens of thousands of dollars (or more depending on the case) with no guarantee of recovery. As an attorney, when you have to tell potential clients this, you can see the defeat in people’s faces before you even get going. It’s scary. What average person has tens of thousands of dollars laying around to pay to a lawyer to fight for their First Amendment right to free speech?

Would those odds make you excited about standing up for yourself? I think not. If you knew all this, would you be so willing to share with the public honest information about bad actors and you personal experience? I think not.

And this doesn’t just go for complaining consumers, but also for investigative journalists. If you think a random, but bigger company, going after an unhappy customer who got ripped off is bad and complained about it is bad … imagine what a powerful elite will try to do to an investigative journalist trying to uncover some very serious dirty laundry and expose it to the world?

Bottom line, for any anti-SLAPP law to be a true shield, among other things, it must contain, at minimum, a statutory award of attorney fees and costs.

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

#firstamendment #defamation #antiSLAPP #legislation #accesstojustice

It’s hard to find caselaw to support your claims when you have none – Wilson v. Twitter

When the court’s opinion is barely over a page when printed, it’s a good sign that the underlying case had little to no merit.

This was a pro se lawsuit, filed against Twitter, because Twitter suspended at least three of Plaintiff’s accounts which were used to “insult gay, lesbian, bisexual, and transgender people for violating the company’s terms of service, specifically its rule against hateful conduct.”

Plaintiff sued Twitter alleging that “[Twitter] suspended his accounts based on his heterosexual and Christian expressions” in violation of the First Amendment, 42 U.S.C. § 1981, Title II of the Civil Rights Act of 1964, and for alleged “legal abuse.”

The court was quick to deny all of the claims explaining that:

  1. Plaintiff had no First Amendment claim against Twitter because Twitter was not a state actor; having to painfully explain that just because Twitter was a publicly traded company it doesn’t transform Twitter into a state actor.
  2. Plaintiff had no claim under § 1981 because he didn’t allege racial discrimination.
  3. Plaintiff’s Civil Rights claim failed because: (1) under Title II, only injunctive relief is available (not damages like Plaintiff wanted); (2) Section 230 of the Communications Decency Act bars his claim; and (3) because Title II does not prohibit discrimination on the basis of sex or sexual orientation (an no facts were asserted to support this claim).
  4. Plaintiff failed to allege any conduct by Twitter that cold plausibly amount to legal abuse.

The court noted that Plaintiff “expresses his difficulty in finding case law to support his claims.” Well, I guess it would be hard to find caselaw to support claims when you have no valid ones.

Citation: Wilson v. Twitter, Civil Action No. 3:20-0054 (S.D. W.Va. 2020)

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

Breaking down the DOJ Section 230 Workshop: Stuck in the Middle With You

The current debate over Section 230 of the Communications Decency Act (47 U.S.C. § 230) (often referred to as “Section 230” or “CDA”) has many feeling a bit like the lyrics from Stealers Wheel – Stuck in The Middle With You, especially the lines where it says “clowns to the left of me, jokers to my right, here I am stuck in the middle with you.” As polarizing as the two extremes of the political spectrum seem to be these days, so are the arguments about Section 230.  Arguably the troubling debate is compounded by politicians who either don’t understand the law, or purposefully make misstatements about the law in attempt to further their own political agenda.

For those who may not be familiar with the Communications Decency Act, in brief, it is federal law enacted in 1996 that, with a few exceptions carved out within the statute, protects the owners of websites/search engines/applications (each often synonymously referred to as “platforms”) from liability from third-party content.  Platforms that allow third-party content are often referred to as user generated content (“UGC”) sites.  Facebook, Twitter, Snapchat, Reddit, TripAdvisor, and Yelp are all examples of such platforms and reasonable minds would likely agree that there is social utility behind each of these sites. That said, these household recognized platform “giants” aren’t the only platforms on the internet that have social utility and benefit from the CDA.  Indeed, it covers all of the smaller platforms, including bloggers or journalists who desire to allow people to comment about articles/content on their websites. 

So, what’s the debate over?  Essentially the difficult realities about humans and technology.  I doubt there would be argument over the statement that the Internet has come a long way since the early days of CompuServe, Prodigy and AOL. I also believe that there would be little argument that humans are flawed.  Greed was prevalent and atrocities were happening long before the advent of the Internet.  Similarly, technology isn’t perfect either.  If technology were perfect from the start, we wouldn’t ever need updates … version 1.0 would be perfect, all the time, every time.  That isn’t the world that we live in though … and that’s the root of the rub, so to speak.

Since the enactment of the CDA, an abundance of lawsuits have been initiated against platforms, the results of which further defined the breadth of the law.  For those really wanting to learn more and obtain a more historical perspective on how the CDA came to be, one could read Jeff Kosseff’s book called The Twenty Six Words That Created the Internet.  To help better understand some of the current debate over this law which will be discussed shortly, this may be a good opportunity to point out a few of the (generally speaking) practical implications of Section 230:

  1. Unless a platform wholly creates or materially contributes to content on its platform, it will not be held liable for the content created by a third-party.  This immunity from liability has also been extended to other tort theories of liability where it is ultimately found that such theory stems from the third-party content.
  2. The act of filtering content by a platform does not suddenly transform it into a “publisher” aka the person that created the content in the first place, for the purposes of imposing liability.
  3. A platform will not be liable for their decision to keep content up, or take content down, regardless of whether such information may be perceived as harmful (such as content alleged to be defamatory). 
  4. Injunctive relief (such as a take down order from a court) is legally ineffective against a platform if such order relates to content that they would have immunity for.

These four general principals are the result of litigation that ensued against platforms over the past 23+ years. However, a few fairly recent high-profile cases stemming from atrocities, and our current administration (from the President down), has put Section 230 in the crosshairs and desires for another amendment.  The question is, amendment for what?  One side says platforms censor too much, the other side says platforms censor too little, platforms and technology companies are being pressured to  implement stronger data privacy and security for their users worldwide while the U.S. government is complaining about measures being taken are too strong and therefore allegedly hindering their investigations.  Meanwhile the majority of the platforms are singing “stuck in the middle with you” trying to do the best they can for their users with the resources they have, which unless you’re “big Internet or big tech” is typically pretty limited.  And frankly, the Mark Zuckerberg’s of the world don’t speak for all platforms because not all platforms are like Facebook nor do they have the kind of resources that Facebook has.  When it comes to implementation of new rules and regulations, resources matter.

On January 19, 2020 the United States Department of Justice announced that they would be hosting a “Workshop on Section 230 of the Communications Decency Act” on February 19, 2020 in Washington, DC.  The title of the workshop “Section 230 – Nurturing Innovation or Fostering Unaccountability?”  The stated purpose of the event was to “[D]iscuss Section 230 … its expansive interpretation by the courts, its impact on the American people and business community, and whether improvements to the law should be made.”  The title of the workshop was intriguing because it seemed to suggest that the answer was one or the other when the two concepts are not mutually exclusive.

On February 11, 2020 the formal agenda for the workshop (the link to which has since been removed from the government’s website) was released.  The agenda outlined three separate discussion panels:

  • Panel 1:  Litigating Section 230 which was to discuss the history, evolution and current application of Section 230 in private litigation;
  • Panel 2: Addressing Illicit Activity Online which was to discuss whether Section 230 encourages or discourages platforms to address online harms, such as child exploitation, revenge porn, and terrorism, and its impact on law enforcement; and
  • Panel 3: Imagining the Alternative which was to discuss the implications on competition, investment, and speech of Section 230 and proposed changes. 

The panelists were made up of legal scholars, trade associations and a few outside counsel who represent plaintiffs or defendants.  More specifically, the panels were filled with many of the often empaneled Section 230 folks including legal scholars like Eric Goldman, Jeff Kosseff; Kate Klonik, Mary Ann Franks, and staunch anti- Section 230 attorney Carrie Goldberg, a victim’s rights attorney that specializes in sexual privacy violations.  Added to the mix was also Patrick Carome who is famous for his Section 230 litigation work, defending many major platforms and organizations like Twitter, Facebook, Google, Craigslist, AirBnB, Yahoo! and the Internet Association.  Other speakers included Annie McAdams, Benjamin Zipupsky, Doug Peterson, Matt Schruers, Yiota Souras, David Chavern, Neil Chilson, Pam Dixon, and Julie Samuels.

A review of the individual panelist’s bios would likely signal that the government didn’t want to include the actual stakeholders, i.e., representation from any platform’s in-house counsel or in-house policy.  While not discounting the value of the speakers scheduled to be on panel, one may find it odd that those who deal with the matters every day, who represent entities that would be the most impacted by modifications to Section 230, who would be in the best position to determine what is or is not feasible to implement in the terms of changes, if changes to Section 230 were to happen, had no seat at the discussion table.  This observation was wide spread … much discussion on social media about the lack of representation of the true “stakeholders” took place with many opining that it wasn’t likely to be a fair and balanced debate and that this was nothing more than an attempt by U.S. Attorney General William Barr to gather support for the bill relating to punishing platforms/tech companies for implementing end-to-end encryption.  One could opine that the Bill really has less to do with Section 230 and more to do with the Government wanting access to data that platforms may have on a few perpetrators who happen to be using a platform/tech service.

If you aren’t clear on what is being referenced above, it bears mentioning that there is a Bill titled “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2019” aka “EARN IT Act of 2019” that was proposed by Senator Lindsey Graham.  This bill came approximately two weeks after Apple was ordered by AG Barr to unlock and decrypt the Pensacola shooter’s iPhone.  When Apple responded that they couldn’t comply with the request, the government was not happy.  An article written by CATO Institute stated that “During a Senate Judiciary hearing on encryption in December Graham issued a warning to Facebook and Apple: ‘this time next year, if we haven’t found a way that you can live with, we will impose our will on you.’”  Given this information, and the agenda topics, the timing of the Section 230 workshop seemed a bit more than coincidence.  In fact, according to an article in Minnesota Lawyer, Professor Eric Goldman pointed out that the “DOJ is in a weird position to be convening a roundtable on a topic that isn’t in their wheelhouse.”

As odd as the whole thing may have seemed, I had the privilege of attending the Section 230 “Workshop”.  I say “workshop” because it was a straight lecture without the opportunity for there to be any meaningful Q&A dialog from the audience.  Speaking of the audience, of the people I had direct contact with, the audience consisted of reporters, internet/tech/first amendment attorneys, in-house counsel/representatives from platforms, industry association representatives, individual business representatives, and law students.  The conversations that I personally had, and personally overheard, was suggestive that the UGC platform industry (the real stakeholders) were all concerned or otherwise curious about what the government was trying to do to the law that shields platforms from liability for UGC.

PANEL OVERVIEW:

After sitting through nearly four hours’ worth of lecture, and even though I felt the discussion to be a bit more well-rounded than I anticipated, I still feel that the entire workshop could be summarized as follows: “humans are bad and do bad things; technology is a tool in which bad humans do bad things; technology/platforms need to find a way to solve the bad human problem or face liability for what bad humans occasionally do with the tools they create; we want to make changes to the law even though we have no empirical evidence to support the position that this is an epidemic rather than a minority…because bad people.”

Perhaps that is a bit of an oversimplification but honestly, if you watch the whole lecture, that’s what it boils down to.

The harms discussed during the different panels included:

  • Libel (brief mention)
  • Sex trafficking (Backpage.com, FOSTA, etc.)
  • Sexual exploitation of children (CSAM)
  • Revenge porn aka Non-Consensual Pornography aka Technology Facilitated Harassment
  • Sale of drugs online (brief mention)
  • Sale of alleged harmful products (brief mention)
  • Product liability theory as applied to platforms (ala Herrik v. Grindr)

PANEL #1:

In traditional fashion, the pro-Section 230 advocates explained the history of the CDA, how it is important to all platforms that allow UGC, not just “big tech” and resonated on the social utility of the Internet … platforms large and small.  However, the anti-Section 230 panelists pointed to mainly harms caused by platforms (though not elaborated on which ones) by not removing sexually related content (though defamation was a short mention in the beginning). 

Ms. Adams seemed to focus on sex trafficking – touching on how once Backpage.com was shut down that a similar close site started up in Amsterdam. She referred to the issues she was speaking about as a “public health crisis.” Of course, Ms. Goldberg raised argument relating to the prominent Herrik v Grindr case wherein she argued a product liability theory as a work around Section 230. That case ended when writ was denied by the U.S. Supreme Court in October of 2019. I’ve heard Ms. Goldberg speak on this case a few times and one thing she continually harps on is the fact that the Grindr didn’t have way to keep Mr. Herrik’s ex from using their website. She seems surprised by this. As someone who represents platforms, it makes perfect sense to me. We must not forget that people can create multiple user profiles, from multiple devices, from multiple IP addresses, around the world. Sorry, Plaintiff attorneys…the platforms’ crystal ball is in the shop on these issues … at least for now. Don’t misunderstand me. I believe Ms. Goldberg is fighting the good fight, and her struggle on behalf of her clients is real! I admire her work and no doubt she sees it with a lens from the trenches she is in. That said, we can’t lose sight of reality of how things actually work versus how we’d like them to work.

PANEL #2:

There was a clear plea from Ms. Franks and Ms. Souras for something to be done about sexual images, including those exploiting children.  I am 100% in agreement that while 46 states have enacted anti “revenge porn” or better termed Non-Consensual Pornography laws, such laws aren’t strong enough because of the malicious intent requirement.  All a perpetrator has to say is “I didn’t mean to harm victim, I did it for entertainment” or another seemingly benign purpose and poof – case closed.”  That struggle is difficult! 

No reasonable person thinks these kinds of things are okay yet there seemed to be an argument that platforms don’t do enough to police and report such content.  The question becomes why is that?  Lack of funding and resources would be my guess…either on the side of the platform OR, quite frankly, on a under-funded/under-resourced government or agency to actually appropriately handle what is reported.  What would be the sense of reporting unless you knew for sure that content was actionable for one, and that the agency it is being reported to would actually do anything about it?

Interestingly, Ms. Souras made the comment that after FOSTA no other sites (like Backpage.com) rose up.  Curiously, that directly contradicted Ms. Adams’s statement about the Amsterdam website popping up after Backpage.com was shut down.  So which is it?  Pro-FOSTA statements also directly contradicts what I’ve heard last October at a workshop put on by ASU’s Project Humanities entitled “Ethics and Intersectionality of the Sext Trade” which covered the complexities of sex trafficking and sex work.  Problems with FOSTA was raised during that workshop.  Quite frankly, I see all flowery statements about FOSTA as nothing more than trying to put lipstick on a pig; trying to make a well-intentioned, emotionally driven, law look like it is working when it isn’t.

Outside of the comments by Ms. Franks and Ms. Souras, AG Doug Peterson out of Nebraska did admit that the industry may self-regulate and sometimes that happens quickly, but he still complained that the state criminal law preemption makes his job more difficult and advocated for an amendment to include state and territory criminal law to the list of exemptions.  While that may sound moderate, the two can be different and arguably such amendment would be overbroad when you are only talking about sexual images.  Further, the inclusion of Mr. Peterson almost seemed as a plug in for a subtle push about how the government allegedly can’t do their job without modification to Section 230 – and I think a part of the was leaning towards, while not making a big mention about it, was the end-to-end encryption debate.  In rebuttal to this notion, Matt Schruers suggested that Section 230 doesn’t need to be amended but that the government needs more resources so they can do a better job with the existing laws, and encouraged tech to work to do better as they can – suggesting efforts from both sides would be helpful

One last important point made during this panel was Kate Klonik making the distinction between the big companies and other sites that are hosting non-consensual pornography.  It is important to keep in mind that different platforms have different economic incentives and that platforms are driven by economics.  I agree with Ms. Klonik that we are in a massive “norm setting” period where we are trying to figure out what to do with things and that we can’t look to tech to fix bad humans (although it can help).  Sometimes to have good things, we have to accept a little bad as the trade-off.

PANEL #3

This last panel was mostly a re-cap of the benefits of Section 230; the struggles that we fact when trying to regulate with a one-size fits all mentality and, I think most of the panelists seem to be agreeing that there needs to be some research done before we go making changes because we don’t want unintended consequences.  That is something I’ve been saying for a while and reiterated during the ABA’s Forum on Communications Law Digital Communications Committee hosted a free CLE titled “Summer School: Content Moderation 101” wherein Jeff Kosseff and I, in a moderated panel by Elisa D’Amico, Partner at K&L Gates, discussed Section 230 and a platform’s struggle with content moderation.  Out of this whole panel, the one speaker that had most people grumbling in the audience was David Chavern who is the President of News Media Alliance.  When speaking about solutions, Mr. Chavern likened Internet platforms to that of traditional media as if he was comparing two oranges and opined that platforms should be liable just like newspapers.  Perhaps he doesn’t understand the difference between first party content and third-party content.  The distinction between the two is huge and therefore I found his commentary to be the least relevant and helpful to the discussion. 

SUMMARY:

In summary, there seem to be a few emotion evoking ills in society (non-consensual pornography, exploitation of children, sex trafficking, physical attacks on victims, fraud, and the drug/opioid crisis) that the government is trying to find methods to solve.  That said, I don’t think amending Section 230 is the way to address that unless and until there is reliable and unbiased data that would suggest that the cure won’t be worse than the disease. Are the ills being discussed really prevalent, or do we just think they are because they are being pushed out through information channels on a 24-hour news/information cycle?

Indeed, reasonable minds would agree that we, as a society, should try and stop harms where we can, but we also have to stop regulating based upon emotions.  We saw that with FOSTA and arguably, it has made things more difficult on law enforcement, victims alike and has had unintended consequences, including chilling speech, on others.  You simply cannot regulate the hate out of the hearts and minds of humans and you cannot expect technology to solve such a problem either.  Nevertheless, that seems to be the position of many of the critics of Section 230.

For more reading and additional perspectives on the DOJ Section 230 Workshop, check out these additional links:

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

“Internet Law” explained

For some reason, every time one says “lawyer” people tend to think of criminal law, family law or personal injury law.  Perhaps because those are very common.  Most people even understand the concept of a corporate or business lawyer, someone who handles trust and estates, or even one that handles intellectual property.  However, when we say “Internet Law” many people get the most confused look on their face and say: “What the heck is that?” If that is you, you’re in good company.  And, to be fair, the Internet really hasn’t been around all that long.

If you were to read the “IT law” page on Wikipedia you’d see a section related to “Internet Law” but even that page falls a little short on a solid explanation – mostly because the law that surrounds the Internet is incredibly vast and is always evolving.

When we refer to “Internet Law” we are really talking about how varying legal principles and surrounding legislation influence and govern the internet, and it’s use.  For example, “Internet Law” can incorporate many different areas of law such as privacy law, contract law and intellectual property law…all which were developed before the internet was even a thing.  You also have to think how the Internet is global and how laws and application of those laws can vary by jurisdiction.

Internet Law can include the following:

  • Laws relating to website design
  • Laws relating to online speech and censorship of the same
  • Laws relating to how trademarks are used online
  • Laws relating to what rights a copyright holder may have when their images or other content is placed and used online
  • Laws relating to Internet Service Providers and what liabilities they may have based upon data they process or store or what their users do on their platforms
  • Laws relating to resolving conflicts over domain names
  • Laws relating to advertisements on websites, through apps, and through email
  • Laws relating to how goods and services are sold online

As you can see just from the few examples listed above, a lot goes into “Internet Law” and many Internet Law attorneys will pick only a few of these areas to focus on because it can be a challenge just to keep up.  Indeed, unlike other areas of law, “Internet Law” is not static and is always evolving.

Do you think you have an Internet Law related question? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business and individual clients and strive to meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

 

 

 

 

Section 230 is alive and well in California (for now) | Hassell v. Bird

Last week, on July 2, 2018 the Supreme Court of California overturned rulings that arguably threatened the ability for online platform users to share their thoughts and opinions freely by ruling in favor of Yelp in the hotly contested and widely watched Hassell v. Bird case.

For those that aren’t familiar with the underlying facts, I offer the following quick background:

In 2014 a dispute arose between California attorney, Dawn Hassell and her former client, Ava Bird when Bird posted a negative review of Hassell on the popular business review site, Yelp.  Hassell claimed that the content of the post was, among other things, defamatory and commenced an action against Bird for the same in the Superior Court of the County of San Francisco, Case No. CGC-13-530525. Bird failed to appear, and the Court entered a default order in favor of Hassell.  There is question as to whether Bird was actually served.  In addition, the court ordered Yelp, a non-party to the case who did not receive notice of the hearing, to remove reviews purportedly associated with Bird without explanation and enjoined Yelp from publishing any reviews from the suspected Bird accounts in the future.  Yelp challenged this order, but the court upheld its ruling.

Hoping for relief, Yelp appealed the decision to the California Court of Appeal, First Appellate District, Division Four, Case No. A143233. Unfortunately for Yelp, the Appellate Court offered no relief and held that: Yelp was not aggrieved by the judgment; the default judgment which including language requesting non-party Yelp to remove the reviews from the website was proper; that Yelp had no constitutional right to notice and hearing on the trial court’s order to remove the reviews from the website; that the order to remove the reviews from Yelp and to prohibit publication of future reviews was not an improper or overly broad prior restraint; and that the Communications Decency Act (“CDA” or “Section 230”) did not bar the trial court’s order to remove the reviews.

The Appellate Court’s ruling was clearly contrary to precedent in California and elsewhere around the country. Yelp appealed the matter to the California Supreme Court, Case No. S235968, to “protect its First Amendment right as a publisher, due process right to a hearing in connection with any order that targets speech on Yelp’s website, and to preserve the integrity of the CDA” according to the blog post written by Aaron Schur, Yelp’s Deputy General Counsel. While Yelp led the charge, they were not left to fight alone.

The internet rallied in support of Yelp.  Dozens of search engines, platforms, non-profit organizations and individuals who value the free sharing of information and ideas contributed amicus letters and amicus briefs (I co-authored an amicus brief for this case) in support of Yelp, including assistance from those like UCLA Law Professor and Washington Post contributor Eugene Volokh and Public Citizen Litigator, Paul Alan Levy, whose work spotlighted the ease in which bogus court orders and default judgments are obtained for the sole purpose of getting search engines like Google to de-index content.  In case you are wondering, bogus court orders and false DMCA schemes are indeed a real problem that many online publishers face.

On April 3, 2018 the California Supreme Court heard oral argument on the case. On July 2, 2018 the Supreme Court released its 102 page opinion in a 3-1-3 decision (three on a plurality opinion, one swing concurring, and three dissenting via two opinions) holding that Hassell’s failure to name Yelp as a defendant, an end run-around tactic, did not preclude the application of CDA immunity.  The court clearly stated “we must decide whether plaintiffs’ litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly.  We believe the answer is no.” Based upon this win for the Internet, at least for now, online publishers in California (or those who have had this case thrown at them in demand letters or pleadings since the original trial and appellate court rulings) can breathe a sigh of relief that they cannot be forced to remove third-party content.

Aaron Shur made an important statement in concluding the Yelp blog post “…litigation is never a good substitute for customer service and responsiveness, and had the law firm avoided the courtroom and moved on, it would have saved time and money, and been able to focus more on the cases that truly matter the most – those of its clients.”  It’s important in both our professional and personal life to not get stuck staring at one tree when there is a whole forest of beauty around us.

While this is indeed a win, and returns the law back to status quo in California, it does raise some concern for some that certain comments in the opinion are signaling Congress to modify Section 230, again (referring to the recent enactment of FOSTA).  Santa Clara Law Professor, Eric Goldman broke down the Court’s lengthy opinion (a good read if you don’t want to spend the time to review the full opinion) while pointing out that “fractured opinions raise some doubts about the true holding of [the] case.”  The big question is where will things go from here?  Indeed, only time will tell.

Citation: Hassell v. Bird, 2018 WL 3213933 (Cal. Sup. Ct. July 2, 2018)

Digital Millennium Copyright Act: It’s NOT for Reputation Management

Let me start out by saying that if your entire business model is based on submissions of Copyright infringement notices (“Digital Millennium Copyright Act Notices” or more commonly referred to as “DMCA Notices”), you should first have a clue about: 1) what goes in one; and 2) what circumstances will likely be found by the court as “infringement.”  If you can’t even get that right, you are doing a disservice to both your customer and are risking litigation against you.  #PetPeeve Yes, I have services in mind but they shall go unnamed.

I understand that in today’s modern world it is incredibly easy for someone to take a picture that posted of someone on the internet and then turn around and upload it elsewhere.  Indeed, depending on the circumstances, it may very well be an instance of Copyright infringement and a DMCA Notice may very well be warranted.  There is an entire legal analysis that often goes into determining Copyright infringement and those who are untrained should consult legal counsel who regularly handles Copyright infringement issues to help walk through the elements.

Notwithstanding the above, if you think that submitting a DMCA Notice to a site where such image is being used in connection with a review, in an effort to get that review or image to be removed from that site, you are likely going to fall flat and may have just wasted time and money.  Why? Because such use is more likely than not going to be considered “fair use” by a court.

The doctrine of fair use is codified at Section 107 of the Copyright Act, 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work … for purposes such as criticism [and] commentary … is not an infringement of copyright.”); see also Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir.2001) (“copyright does not immunize a work from comment and criticism.”).  Similarly, courts around the country have upheld the fair use doctrine for the type of claim that most people write to review websites about, i.e., an image connected with a critical review. See Dhillon v. Does 1-10, Not Reported in F.Supp.2d, 2014 WL 722592 (N.D.Cal. 2014) (finding of fair use when Plaintiff’s professional headshot was used for article criticism and commentary); Galvin v. Illinois Republican Party, Slip Copy, 2015 WL 5304625 (N.D.Ill. 2015) (finding of fair use when Plaintiff’s photograph was used in a flyer for the purpose of criticism and commentary); Katz v. Chevaldina, Slip Copy, 2014 WL 2815496, 111 U.S.P.Q.2d 1281, (S.D.Fla. 2014) (finding unauthorized use of unflattering photo of businessman in a blog that is critical of his business practices to be fair use as a matter of law); Katz v. Google, Inc., —F.3d—, 2015 WL 5449883 (11th Cir. 2015) (finding of fair use when blogger used a photograph of a businessman, which he owned the copyright to, in a posting that was to deter others from conducting business with businessman); and Weinberg v. Dirty World, LLC, et al., 2:16-CV-09179 (C.D.Cal. Jul. 27, 2017) (finding fair use when photograph, captured from a video clip which Plaintiff had rights to, was uploaded to an online review website to “ridicule, mock, and critique” the figures in the image).

Moral of the story: if you are considering using a DMCA Notice (or hiring some Reputation Management company who uses this “method”) in effort to try and get postings or images removed from the internet…you should seriously reconsider your strategy. Chances are such companies (or law firms – I’ve seen ridiculous letters from attorneys too) are just taking your money and you may not get the results boasted about. Remember, there has to be a good faith believe that the use is infringing and when there is an abundance of case law that says “fair use”…one questions the “good faith” requirement.

Are you a business that operates a website where you regularly receive DMCA Notices? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business clients meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.