Topic: Legal

Legal side of Reputation Management

Section 230 Protects Google’s Decision Not To De-Index Content–Bennett v. Google 0

pierson screenshotDawn J. Bennett was a financial advisor in major trouble with the SEC. She also has a sporting apparel company. She hired an SEO, Pierson, to improve the search engine indexing of her website. After a payment dispute, Pierson posted a blog post that starts out “DJ Bennett, the luxury sporting goods company, does not pay their employees or contractors.” Bennett demanded Google de-index the blog post, and then sued Google for defamation and more when it didn’t.

As you’d expect, the suit flops. Guided by the binding Klayman v. Zuckerberg opinion, the court’s short opinion easily grants Google’s motion to dismiss on Section 230 grounds because:

* “Google qualifies as an interactive computer service”
* “Scott Pierson, a third party, wrote the blog about Plaintiffs,” and
* “Plaintiffs aim to hold Google liable as the publisher of the content”

A textbook Section 230 claim. The court continues:

To salvage their claim, Plaintiffs attempt to argue that a novel issue is presented in this case which requires the court to deny the Defendant’s Motion to Dismiss. Plaintiffs state “[b]ut what courts have not fully addressed is where a service provider, such as Google, adopts definitive prohibitions regarding the content of third party user material, and does not enforce them … [what is] the impact of such failure on Section 203(e) immunity.” Simply, “… does it create such an obligation for itself if it adopts guidelines of what it deems objectionable content and fails to follow through by enforcing such standards?” The answer is “no,” and thus Defendant’s Motion to Dismiss must still be granted. See Klayman, 753 F.3d at 1359–60 (discussing that the CDA bars claims arguing that service providers must be held to a heightened duty of care based on adoption of any statements allocating rights and responsibilities between interactive computer services and their users). “It would be impossible for service providers to screen each of their millions of postings for possible problems.” Zeran v. America Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997). Furthermore, holding Google liable for establishing standards and guidelines would ultimately create a powerful disincentive for service providers to establish any standards or ever decide to remove objectionable content, which the CDA was enacted to prevent.

As the court indicates, this argument is not the least bit novel. Dozens of times, plaintiffs have pointed to defendants’ editorial standards as creating some enforcement duty. In my Internet Law course, I teach this issue using the Noah v. AOL case from 2003. Thus, the court rightly shut it down quickly.

Case citation: Bennett v. Google, Inc., 2017 WL 2692607 (D.C.D.C. June 21, 2017). The complaint.

Source: Eric Goldman Legal

Arizona Blockchain Law and Smart Contracts 0

Arizona blockchain lawOriginally released as a platform to enable the transfer of Bitcoins, blockchain protocols accommodate “smart contracts.” What are “smart contracts,” you ask? Digital programs that automatically execute parameters of a transaction. This can range from placing a custom call or put option to making scheduled payments.  Smart contracts reliably run as programmed, therein substantially reducing the risk of fraud or third-party interference. Due to the rise of this cryptocurrency technology, state legislators passed an Arizona blockchain law.

Smart Contracts

HB 2417 (The “Signatures; Electronic Transactions; Blockchain Technology” statute) was signed into law by Arizona Governor Doug Ducey in late March. The regulation addresses blockchain enforceability and smart contract transactions involving product sales, leases, and documents.

The Arizona Blockchain Law: Amending AETA

The Arizona Electronic Transactions Act (AETA) establishes that digital signatures are legally enforceable.  HB 2417 clarifies that electronic records, signatures, and smart contracts — guaranteed via blockchain technology and governed by UCC Articles 2, 2A, and 7 — are treated as legal electronic signatures under AETA.  The new statute also stipulates that a transaction agreement shouldn’t be denied validity, legal effect, or enforceability just because it was executed via a smart contract.

Seeking to avoid any legal uncertainty surrounding blockchain transactions and smart contracts relating to certain digital assets, HB 2417 includes a number of interesting points:

  • The statute includes a very specific definition of “blockchain technology” as a “distributed, decentralized, shared and replicated ledger, which may be public or private, permissioned or permissionless, or driven by tokenized crypto economics or tokenless” and provides that the “data on the ledger is protected with cryptography, is immutable and auditable and provides an uncensored truth.”
  • HB 2417 includes a definition of “smart contracts” as an “event driven program, with state, that runs on a distributed, decentralized, shared and replicated ledger that can take custody over and instruct transfer of assets on that ledger.”
  • The law provides that a person that, in or affecting interstate or foreign commerce, uses blockchain technology to secure information that the person owns or has the right to use retains the same rights of ownership or use with respect to that information as before the person secured the information using blockchain technology.


Similar Laws In Other States

Arizona isn’t the only state to address evolving technologies, like blockchain.  Nevada has a bill pending; in 2016, Vermont made sure the state’s evidentiary rules treated blockchain-based digital records as business records; Hawaii, Maine, and Delaware all have bills pending or are considering amendments.

Kelly / Warner is a leading Internet law firm that works with businesses across the country and around the world.

Article Sources

Neuburger , J. (2017, April 20). Arizona Passes Groundbreaking Blockchain and Smart Contract Law – State Blockchain Laws on the Rise. Retrieved June 21, 2017, from

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Source: Kelly Warner Law

Does the Packingham Ruling Presage Greater Government Control Over Search Results? Or Less? (Guest Blog Post) 0

By guest blogger Heather Whitney

[Heather is a Visiting Researcher at Harvard Law School (Spring 2017). She has also been Bigelow Fellow & Lecturer in Law at University of Chicago Law School (2014-2016) and a Googler (2007-2010). She will be a doctoral candidate in Philosophy at NYU starting this Fall.]

The majority opinion in Packingham v. North Carolina “equate[d] the entirety of the internet with public streets and parks” and declared it “clear” that “cyberspace” and “social media in particular … [are] the most important places (in a spatial sense) for the exchange of views.” Indeed, the Court went so far as to call social media “the modern public square” and thought it “[a] fundamental principle of the First Amendment … that all persons have access” to it.

i-love-social-mediaMost commentators have thought the main takeaway from all this is that the government is now unable to limit individuals’ access to internet sites (Justice Alito’s stated concern). And from this they have inferred a second takeaway. Namely, that the First Amendment now protects internet companies in imposing whatever private rules they like. I question this inference. Conceiving of these sites as the modern public square may indeed make it difficult for states to deny individuals and organizations access to them. But, it may also make it much harder for these sites to deny access to users and advertisers. And, as I’ll briefly mention at the end, if Packingham makes it harder for these sites to deny users access, it may also call into question the constitutionality of Section 512(i) of the DMCA, which conditions service provider safe harbor on their terminating access for repeat infringers in “appropriate circumstances.”

In short, it’s worth stopping and asking: what are the implications of thinking of Facebook or Twitter or Google as the modern public square? I think it more complicated than some have said. To that end, here are a few thoughts:

A number of (not well resourced) litigants have argued that companies like Google violate both their First Amendment rights and a litany of unfair and deceptive practices laws when they delist their sites, refuse to run their ads, block their accounts, remove their videos, etc. Companies like Google successfully respond in two ways. First, analogizing themselves to the newspaper editor in Tornillo, they argue that their decisions about what to rank, which ads to run, etc. are editorial judgments, and forcing them to do otherwise would constitute unconstitutional compelled speech. Second, they point out that the First Amendment proscribes the conduct of government actors, not private ones. Courts, in cases like Zhang, Langdon, Search King, and Cyber Promotions have agreed with these companies on both counts.

As for the first argument (that the company outputs are their First Amendment speech), it continues to be debated by scholars. As my co-author Robert Simpson and I discuss in a forthcoming article, it’s been something of a war of analogies. Google as editor v. Google as conduit v. Google as shopping mall. So, does seeing these spaces as the modern public square change this analysis? Hard to say, but seeing these spaces as public squares may make courts more receptive to a non-editorial framing. Conceived of as a public square, people may not see these site layouts and ad placements as the company’s speech, which at minimum may bolster the argument that requiring Facebook to accept a particular ad isn’t compelling Facebook to speak at all. Again, hard to know.

But as interesting as that all is, Packingham’s implications for the state action doctrine seem even more so.

As is well known by legal scholars (less so by everyone else), the First Amendment protects people from government restrictions on speech, not restrictions leveled by private actors. There are, however, exceptions. The Court has adopted various tests for determining state action and I’ll avoid guessing which one(s) it’ll use going forward. But, as the Court said in Marsh, “[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” In equating the internet with public streets and parks and finding them “the most important places” for First Amendment speech in modern times, the majority certainly seems to think these companies are, contra the shopping center in Lloyd Corp. Limited v. Tanner, open to the public for general purposes. Indeed, companies like Facebook and Google have consistently tried to frame themselves as neutral platforms where third-parties speak. And, contra the private shopping center in Logan Valley Plaza, the Court in Packingham seems to think being denied access to social media sites deprives people of a reasonable opportunity to convey their message.

As I mentioned briefly above, Packingham may also call into question the constitutionality of Sec. 512(i) of the DMCA. Annemarie Bridy talks about this more here. While she finds that Sec. 512(i) is not state action, considering that online is the modern public square and the state requires providers to deprive access to users in order to themselves escape substantial liabilities, I can imagine some arguments to the contrary.

Finding these companies vulnerable to the First Amendment challenges of users is no slam dunk, and the Court may walk back its language going forward. But, at least for now, Packingham might tip the scales a bit more in that direction. If I were at any of these companies, I’d wish Justice Alito’s concurrence had been the majority.

Case citationPackingham v. North Carolina, No. 15–1194 (U.S. Sup. Ct. June 19, 2017). Eric’s blog post.

Source: Eric Goldman Legal

Frequency of Courts’ References to Emojis and Emoticons Over Time 0

[This is another excerpt from my Emojis and the Law paper.]

In preparing the article, I gathered a dataset of all cases I could find in Westlaw and Lexis containing the word “emoticon” or “emoji.” This dataset is subject to the many known limitations of researching cases in Westlaw and Lexis, such as the limited percentage of opinions that make it into the electronic databases. In total, I found 80 opinions dated December 31, 2016 or earlier containing the term “emoticon” or “emoji.” I have posted my dataset.

This count of 80 opinions likely understates the actual number by a lot.

First, I did not search for any synonyms of “emoticon” and “emoji.” For example, emoticons are sometimes called “smileys,” and surely that search term would have yielded additional relevant results. However, “smiley” has other meanings and is sometimes used as a personal name, so a Westlaw or Lexis search for “smiley” yields over 10,000 results.

Even a more targeted smiley search yields a lot of results. For example, the term “smiley face” returns over 300 results in Westlaw. Some of these cases may have referred to emojis or emoticons. See, e.g., People v. Balegno, 2016 IL App (3d) 140113-U ¶ 32 (Ill. App. Ct. Feb. 1, 2016) (“Defendant noted that ‘ha ha’ and ‘lmao’ (referring to ‘laughing my ass off’) and smiley faces appeared often in the text messages”); People v. Herrera, 2015 WL 4920075 (Cal. App. Ct. Aug. 18, 2015) (“Yadira invited Ramirez, adding ‘a smiley face’ to the text message”). Other searches using more pinpointed queries may yield similar results.

Second, I could not search Westlaw and Lexis using emoticon characters, such as a query “:-)” for the smiley because those include boolean signals. Furthermore, while doing other research, I stumbled across Fry v. Robinson, 2017 WL 416974 (6th Cir. Jan. 31, 2017). That opinion displays smiley emojis three times and a winky emoji once (I’m having trouble with getting the right emoji to display in WordPress, so I’ll present this as screen grabs):

fry 1



fry 2



fry 3



fry 4



Because the opinion does not use the phrase “emoticon” or “emoji,” it did not show up in my database queries. Even though Westlaw’s opinion showed the smiley and winky outlines, when I tried searching for the character outlines in Westlaw, Westlaw simply didn’t recognize it. It’s likely there are other cases like this one.

Third, the electronic databases do not allow search queries using images, so it’s impossible to search for emojis in their graphical format. However, it probably would not have made much of a difference to my searches because court opinions rarely display the actual emoji at issue (the paper explains this more).

Despite the dataset’s limitation, it still may provide some helpful insights into emojis in court. At minimum, it’s clear that the court system soon will be encountering more cases involving emojis. This graph showing the number of court opinions each year containing the word “emoticon” or “emoji”:

Emoji Word Frequency

Over 30% of the total case references occurred in 2016, and about half of the case references occurred in the last two years. This exponential growth rate suggests we have just begun to see emoji-related issues in courts.

UPDATE on the article excerpt: it’s too early to definitively crunch 2017’s stats, but I’m amazed at how quickly the word “emoji” has overtaken “emoticon.” The first reference to emoji was 2014, and about 70 of the 80 case references I counted were to “emoticon.” By 2017, out of 14 cases through 6/21/17, emoji appears in 11 cases and emoticons only in 3. In other words, there have been more emoji references in the first half of 2017 than in all of the prior caselaw history. Of course, some courts may be using the term emoji to describe what are actually emoticon; I’ve found several cases of the reverse (emoticon used to describe emoji). Still, in just a couple of years, emojis have probably permanently eclipsed emoticons in caselaw references.

Source: Eric Goldman Legal

Esports Visas: An Introduction to P-1 Visa Legal Issues For Professional Gamers 0

esports visasIn the not too distant past, Asia was all about esports; but in the U.S., professional gaming was in the purview of Pepper Brooks and the gang over at ESPN 8, The Ocho. 

Lately, however, esports is surging in the United States. Companies are sponsoring tournaments with sizable purses; leagues like the NBA and NFL are forming corresponding esports clubs. Proof: Prizes at the 2016 International Dota 2 Championship weighed in at $20 million — almost double the total payout of The Masters golf tournament.  In short, the professional gaming economy is cruising upwards, at warp speed.

But something is vexing international esports athletes: Work visas to compete in U.S. esports tournaments.

Esports Visas in the United States: P-1

Esports continues to exist in a legal gray zone. For example: Are esports professionals considered “athletes” and can they qualify for P-1 visas (which are needed to legally participate in stateside esports tournaments)?  The process to acquire a P-1 visa is not altogether difficult, but it’s also an inconsistent process. For example, there have been stories of esports athletes who were green-lit for 2016 tournaments, and then denied in 2017. There was also chatter about someone who was accepted in April for a tournament, and then rejected in August for another.

The P-1 visa system is unpredictable and inconsistent, which makes competing in the US difficult for many players.  Visa applications can take months to be approved. Moreover, since there is no hard-and-fast rule on whether or not a professional gamer qualifies as an athlete, the decision sometimes falls to the opinion of one government worker.

Proving “non-immigrant intent” is the first hurdle to securing a P-1 visa.  Applicants must demonstrate that they have permanent employment, relevant business or financial connections, or familial ties in their country. Why? Because officials wants to make sure that P-1 participants go home after their visas expire.

Visas For Professional Game Players: Esports v. Chess Community

The situation faced by many esports athletes got us thinking: How does it work for chess tournaments?  After all, the US hosts many chess events, with participants from every corner of the globe.

We discovered that the US Chess Association offers invitations to foreign players, which streamlines the process for acquiring a P-1 visa.

Video game players, on the other hand, have to get a US employer to obtain an approved PQ petition from the United States Citizenship and Immigration Services (USCIS).  Once officials approve the request, the player can then apply for a P-1 visa.  Going through this paperwork process, multiple times a year, to compete in a handful of tournaments, can be exceptionally frustrating.

With the esports industry skyrocketing, both at home and abroad — not to mention rising viewership — the industry must figure out a way to make it easier for the world’s best video game players to compete on the US stage. If not, the U.S. esports programs may not be able to become contenders.


Kelly / Warner works with esports athletes and teams on various business and legal issues — including esports visas, contract negotiations, and other business logistics. Questions? Please get in touch.

Article Sources

New, C. (2017, May 18). Immigration In Esports: Do Gamers Count As Athletes? Retrieved June 20, 2017, from

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Source: Kelly Warner Law