Topic: Legal

Legal side of Reputation Management

Facebook Defeats Another Case Over Not Removing User Comments–La’Tiejira v. Facebook 0

In terms of legal doctrine, this case is virtually identical to the Cross v. Facebook case I recently blogged. In both cases, the plaintiff sued Facebook for not removing user posts. In both cases, Facebook won an anti-SLAPP motion (CA in Cross, TX in La’Tiejira) predicated on Section 230 and the plaintiff will be writing a check to Facebook. If you’re a Section 230 aficionado, this opinion is especially worth reading (despite its prolixity) because (1) it will be published in FSupp3d, and (2) it’s filled with lots of positive judicial statements about Section 230, its breadth, etc.

The plaintiff, Paree La’Tiejira, a/k/a “Lady Paree,” has been an adult entertainer. Apparently people have questioned her birth gender in the past. On La’Tiejira’s Facebook page, a Facebook user posted a comment accusing her of having been born male and saying some not-nice things. La’Tiejira said she complained to Facebook (though it’s unclear if she reported it through the right channels) and Facebook didn’t remove the comment for 6 months. The factual predicate sets up an easy Section 230 case.

To qualify for anti-SLAPP protection, Facebook had to establish that the case involved a matter of public concern. The court says: “The “communications” were also made “in connection with a matter of public concern” because communications about ‘public figures’ are matters of public concern. As noted, La’Tiejira considered herself a public figure based on her profession as an actress in the adult entertainment field who made substantial money in signings, photographs, club appearances dancing, adult video store appearances.”

On the merits, Facebook qualifies for Section 230 protection:

1) Facebook provides an ICS, citing Klayman, Caraccioli, Sikhs for Justice.

2) Facebook qualifies as a publisher/speaker because “all of La’Tiejira’s claims seek to hold the Facebook Defendants liable for decisions about the monitoring, screening, and deletion of user-generated content.”

3) The content came from a third party source because “offensive messages in dispute were allegedly authored by third-party Kyle Anders.” The fact that La’Tiejira allegedly notified Facebook of the offending post, and Facebook only took action months later, is immaterial to the immunity. Cites to Lycos and Dirty World.

La’Tiejira raised some unusual challenges to Section 230 that the court quickly rejects, including allegations of due process, full faith and credit, and access to courts violations.

Texas’ anti-SLAPP law has a mandatory attorneys’ fee provision, so the plaintiff will be paying a big bill for Facebook’s attorneys’ fees.

Case citation: La’Tiejira v. Facebook, Inc., 2017 WL 3426039 (S.D. Tex. Aug. 7, 2017)

Source: Eric Goldman Legal

Trademark Injunction Issued Against Print-on-Demand Website–Harley Davidson v. SunFrog 0

The print-on-demand business is a legally risky one. As I recently blogged, in June a court ruled that Zazzle did not qualify for the DMCA 512 safe harbor. This ruling is even more troubling. Are the days of print-on-demand services numbered, at least any that try to operate without human prescreening of all user uploads?

SunFrog prints user-uploaded designs on T-shirts and other merchandise. Users uploaded Harley-Davidson logos to produce what Harley considered counterfeit T-shirts. The case doesn’t mention if users uploaded any parodic versions of the logos, though the court’s ruling does not distinguish between counterfeits and parodies. (Paging Rebecca Tushnet, who has shown through FOIA requests that our own government can’t make that distinction either). SunFrog claimed it took a number of steps to protect Harley’s marks, but apparently these steps did not satisfy Harley.

The court doesn’t mention Tiffany v. eBay at all. Instead, the court easily finds that Harley qualifies for a preliminary injunction:

  • “Because SunFrog sells numerous products bearing marks identical to or materially indistinguishable from Harley-Davidson’s registered (and largely incontestable) marks, Harley-Davidson has established a likelihood that consumers, viewing SunFrog’s products in the marketplace, would be confused as to their source, affiliation, or sponsorship.”
  • “Harley-Davidson presents a fairly straightforward case of counterfeiting against an online marketplace. Stopping this conduct will serve both to protect HarleyDavidson’s interest in its consumer goodwill and vindicate the public’s interest in avoiding deception as to the source or sponsorship of the goods they purchase.”

In defining the injunction’s scope, the court consulted the archaic and mockably wrong Promatek v. Equitrac opinion (a case I still teach in Internet Law because the mocking payoffs are so pedagogically powerful), saying:

consumers would likely experience initial-interest confusion upon seeing a SunFrog URL containing Harley-Davidson’s marks, wherever they may be located within the URL. Those consumers would then be more likely to browse SunFrog’s offerings regardless of whether they realized that the products were not genuine Harley-Davidson goods.


Ugh. First, “initial interest confusion.” No. Just no. NEVER.

Second, this case runs directly contrary to other cases (including the cited a2z and Patmont cases) that have held a trademark in the post-domain URL path doesn’t constitute trademark infringement. To reach a contrary result, the court analogizes trademarks in post-domain URLs to metatags, even though post-domain trademark references share basically zero common technological attributes with keyword metatags–at all. Furthermore, as noted earlier, the court’s treatment doesn’t distinguish between counterfeits and parodies or criticism, so there could be circumstances where the Harley marks may be appropriate in the post-domain URL. The result is that the court introduces a conflict with the unbroken a2z/Patmont line of cases based on technological fictions. Blech.

In a footnote, the court discusses the “innocent infringer” limitation on remedies for publishers (15 USC 1114(2)). Mark Lemley has extolled the virtue of this provision, but I’ve always been skeptical that it has much utility at all. There is limited and not-encouraging caselaw interpreting it. 1114(2) only restricts past damages, not an injunction against future activity, so the court says the 1114(2) defense is irrelevant in this case without reaching the harder issue of whether SunFrog had the requisite “innocence.”

Among other restrictions, the injunction bans SunFrog from displaying/using certain Harley marks, the following logos, and any “confusingly similar” marks:

harley logos

It also bans SunFrog from using the Harley marks in domain names and “keywords” (paging the FTC regarding the competitive effects of keyword restrictions). The injunction makes no allowances for parodies, criticism, other fair uses or other limitations on Harley’s trademark rights.

So how will SunFrog implement this injunction when processing user submissions? It can set up keyword filters on the word marks. Maybe it has the technology to auto-filter images from user uploads. But because the injunction extends to “confusingly similar” marks and logos, to me it seems like the only 100% effective way to implement the injunction would be manual prescreens of all user uploads.

>What implications does this ruling have for other print-on-demand or online marketplace websites? If the opinion is just an outlier, not much. But if this case presages a greater judicial intolerance for online marketplace facilitation of user “counterfeiting,” this ruling is bad, bad news for both industries.

Case citation: H.-D. USA, Inc. v. SunFrog LLC, 2017 WL 3261709 (E.D. Wis. July 31, 2017). The complaint.

Related Posts:

DMCA Safe Harbor Doesn’t Protect Zazzle’s Printing of Physical Items–Greg Young Publishing v. Zazzle
Amazon Defeats Publicity Rights Lawsuit Over ‘A Gronking To Remember’ Book Cover
CafePress May Not Qualify For 512 Safe Harbor – Gardner v. CafePress
Cafepress Suffers Potentially Significant Trademark Loss for Users’ Uploaded Designs
Life May Be “Rad,” But This Trademark Lawsuit Isn’t–Williams v.
Griper Selling Anti-Walmart Items Through CafePress Doesn’t Infringe or Dilute–Smith v. Wal-Mart
Print-on-Demand “Publisher” Isn’t Liable for Book Contents–Sandler v. Calcagni
CaféPress Denied 230 Motion to Dismiss–Curran v. Amazon

Source: Eric Goldman Legal

Facebook Defeats Lawsuit Over Failure to Remove User Pages–Cross v. Facebook 0

[It’s impossible to blog about Section 230 without reminding you that Congress is on the cusp of gutting it.]

The principal plaintiff, performer Mikel Knight, was the subject of critical Facebook posts related to two fatal accidents by his tour buses. Knight demanded Facebook remove the posts. Facebook refused. Knight sued. Facebook brought an anti-SLAPP motion predicated on Section 230. Sounds like an easy win for Facebook…right?

Yes, except somehow the trial court fouled this up. The court granted the Section 230-based anti-SLAPP motion for some of the claims but not for the publicity rights-related claims–despite the fact that Facebook merely ran ads on third party content, and without any reference to the ccBill case saying Section 230 preempted publicity rights claims in the Ninth Circuit (or the Caraccioli v. Facebook case, confirming that result). The trial court’s ruling prompted my first meltdown of 2016 about the state of Section 230 jurisprudence, when I asked “WTF Is Going On With Section 230?

Fortunately, the appellate court fixes this mess. The court concludes that all of the claims against Facebook are covered by California’s anti-SLAPP law. While the court expressly sidesteps Section 230’s applicability to publicity rights claims, this is still a satisfying denouement to a bad ruling.

The opinion starts by considering if the case involved an issue of public interest. The posts “involved the danger of trucks on highways driven by sleep-deprived drivers,” which is clearly a matter of public interest. To get around this, the plaintiffs tried an unusual and tricky argument: they said they were suing over Facebook’s privately communicated promises to remove the content, and that communication wasn’t a matter of public interest. The court says this argument was belied by the plaintiffs’ filings, which focused on the Facebook pages’ content. I would add that an Internet giant’s decision to remove user content could be a matter of public interest based on the censorious implications, but the court didn’t need to go that far. The “commercial speech” exception to the anti-SLAPP law also did not apply.

Turning to the plaintiffs’ showing of a likelihood of prevailing on the merits, the court has little trouble concluding that Section 230 preempts the breach of contract, negligent misrepresentation, and negligent interference claims. The plaintiffs once again tried to argue that they were suing based on Facebook’s removal promises (including, apparently, the negative behavioral covenants in its Statement of Rights and Responsibilities), and once again it didn’t work. The court responds that “numerous courts have held the CDA bars claims based on a failure to remove content posted by others” (citing Hupp v. Freedom Communications, Doe II v. MySpace, Gentry v. eBay, Caraccioli v. Facebook, Klayman v. Zuckerberg and Sikhs for Justice v. Facebook).

Finally, the court turns to the publicity rights claims. The court says these claims aren’t meritorious because Facebook does not “use” the plaintiff’s identity:

The gravamen of Knight‘s complaint is that Facebook displayed unrelated ads from Facebook advertisers adjacent to the content that allegedly used Knight‘s name and likeness—content, Knight concedes, created by third-party users. He has not, and cannot, offer any evidence that Facebook used his name or likeness in any way.

Publicity rights law is a doctrinal mess. Courts routinely struggle with how to apply publicity rights laws to ad-supported editorial content that references or depicts a plaintiff. The appellate court got to the right place, but I don’t have much faith that future courts will do the same.

Let’s not forget how bad of a ruling this is for the plaintiffs. Facebook’s anti-SLAPP win means the plaintiffs are on the hook for Facebook’s attorneys’ fees, which aren’t going to be cheap (especially given that the appellate costs are included).

Note: On appeal, I joined the EFF’s amicus brief in favor of Facebook.

Case citation: Cross v. Facebook, Inc., 2017 WL 3404767 (Cal. App. Ct. Aug. 9, 2017)

Source: Eric Goldman Legal

Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong 0

drudge sirenWhen introducing the Stop Enabling Sex Traffickers Act of 2017 (S. 1693, the Senate’s anti-Section 230 bill), Sen. Portman said (emphasis added):

There are some groups who have been critical of this effort to hold backpage accountable and stop this online exploitation. They have suggested that this bipartisan bill could impact mainstream websites and service providers—the good actors out there. That is false. Our bill does not amend, and thus preserves, the Communications Decency Act’s Good Samaritan provision. This provision protects good actors who proactively block and screen for offensive material and thus shields them from any frivolous lawsuits. That is in the legislation and needs to be in there.

This positioning makes it sound like websites who object to SESTA are overreacting–why should they complain if they still have immunity? Unfortunately, Sen. Portman’s statement is flat-out wrong, and it’s such an egregious mistake that it makes me question if he and his co-sponsors actually understand the language in their bill (or Section 230, for that matter).

Section 230 has two main operative provisions. Section 230(c)(1) says websites aren’t liable for third party content. Section 230(c)(2) says websites aren’t liable for filtering content they consider offensive. Sen. Portman’s statement indicates that he thinks SESTA would create new exclusions only to Section 230(c)(1) and would not amend 230(c)(2). However, the bill clearly changes both 230(c)(1) and 230(c)(2) equally.

Section 230(e) enumerates four modifications to the immunity, including Section 230(e)(1), which the bill would amend to read (new language bolded):

Nothing in this section shall be construed to impair (A) the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, Section 1591 (relating to sex trafficking) of that title, or any other Federal criminal statute or (B) any State criminal prosecution or civil enforcement action targeting conduct that violates a Federal criminal law prohibiting (i) sex trafficking of children; or (ii) sex trafficking by force, threats of force, fraud, or coercion.

The bill also would create a new Section 230(e)(5):

No effect on civil law relating to sex trafficking. Nothing in this section shall be construed to impair the enforcement or limit the application of section 1595 of title 18, United States Code

The added language to Section 230(e)(1) and the new Section 230(e)(5) would expose Internet services to countless new enforcement actions by state law enforcement and civil plaintiffs.

Notice how both Section 230(e)(1) and the proposed Section 230(e)(5) start off with the statement: “Nothing in this section shall be construed to impair…” The only possible reading of “nothing in this section” is that it refers to all of Section 230, including both Section 230(c)(1) and (c)(2). I didn’t find any cases interpreting what “this section” means, but I found several cases implying that Section 230(c)(2) is subject to Section 230(e)’s exceptions. See, e.g., e360Insight, LLC v. Comcast Corp., 546 F.Supp.2d 605 (N.D. Ill. 2008); Holomaxx Technologies v. Microsoft Corp., 783 F.Supp.2d 1097 (N.D. Cal. 2011); Milo v. Martin, 311 S.W.3d 210 (Tex. Ct. App. 2010) (concurring opinion); Davis v. Motiva Enterprises, L.L.C., 2015 WL 1535694 (Tex. Ct. App. Apr. 2, 2015). Applying standard methods of statutory construction, Section 230(c)(1) and (c)(2) are equally affected by the existing and proposed Section 230(e) exceptions. As a result, Section 230(c)(2) would not limit any new enforcement actions unleashed by the proposed amendments.

[Note 1: Gucci America v. Hall & Associates, 135 F.Supp.2d 409 (SDNY 2001) contains a sentence saying: “Immunizing Mindspring from Plaintiff’s claims, therefore, would “limit” the laws pertaining to intellectual property in contravention of § 230(c)(2).” Although this language seemingly confirms my analysis, I believe the Section 230(c)(2) reference is a typo. The court meant to say 230(e)(2), a correction noted by Ford Motor v., 2001 WL 1176319 (E.D. Mich. Sept. 25, 2001) when quoting this exact language.]

[Note 2: a few cases, including the Seventh Circuit’s Doe v. GTE and Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist cases, have suggested that Section 230(c)(1) acts as a definitional section for Section 230(c)(2). These cases make a strained reading of the statute, but they also would further undermine Sen. Portman’s statement because, under this reading, Section 230(c)(2) would be the only operational immunity the bill could amend.]

Because I don’t see any possible way of interpreting the statutory language to say that Section 230(c)(2) is subject to different exclusions than Section 230(c)(1), Sen. Portman’s claims to the contrary appear to be a misreading of the existing statute or a misunderstanding of how the bill fits into the existing statutory language. Of course, Congress could easily effectuate Sen. Portman’s claim through different drafting. Instead of preceding Section 230(e)(1) and (e)(5) with “Nothing in this section…” the amendment could say “Nothing in Section 230(c)(1)…” thereby making Section 230(c)(2) not subject to those exclusions.

There is another problem with Sen. Portman extolling Section 230(c)(2)’s protection: it’s basically a defunct safe harbor that does not provide much protection from “frivolous” lawsuit. Unlike Section 230(c)(1), Section 230(c)(2) has a good faith requirement, i.e., to qualify for the safe harbor, the website’s filtering decisions must be made in good faith. Plaintiffs can, and routinely will, allege that the defendant made a filtering decision in subjective bad faith, and courts routinely let those generic and unsupported allegations defeat a motion to dismiss. Thereafter, plaintiffs can do expensive and intrusive discovery into the website’s subjective intent, raising defense costs substantially and extending the case to summary judgment or possibly a trial. As a result, few if any websites actually rely on Section 230(c)(2)’s protection; everyone relies on Section 230(c)(1). Indeed, we’ve recently seen filtering cases–where Section 230(c)(2) clearly should have applied–decided on 230(c)(1) grounds instead. See, e.g., Sikhs for Justice v. Facebook. It appears Sen. Portman may not understand how Section 230(c)(2) has effectively failed in the field.

I hope this blog post helps explain why so many in the Internet community have expressed grave concerns about SESTA’s effects despite Sen. Portman’s efforts to marginalize the concerns. The sponsors apparently think the bill wouldn’t change Section 230 for “good actors” when in fact it would eviscerate the immunity.

Related posts

* Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
* The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
* WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
* The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity

Source: Eric Goldman Legal

Section 230 Helps Yahoo Defeat Lawsuit Over Online Harassment Campaign–Hall v. Yahoo 0

[It’s impossible to blog about Section 230 without reminding you that Congress is on the cusp of gutting it.]

Thomas Hall is a lawyer and author. He claims he was targeted for email harassment by several individuals. He further claims that Yahoo published defamatory material from his harassers using Yahoo and Hotmail accounts. Yahoo submitted a declaration that it hadn’t operated the accounts that Hall claims harassed him. Yahoo made an anti-SLAPP motion predicated in part on Section 230, and the court concludes Hall did not make the requisite showing of success.

Hall tries to overcome Section 230 by arguing that Yahoo failed to disclose identifying information for the Yahoo/Hotmail accountholders and therefore takes legal responsibility for their actions. The court flatly rejects the argument, saying the “CDA contains no such requirement.” The court adds “there was undisputed evidence that Yahoo was not responsible, in whole or in part, for the content of the emails and posts that are the subject of Hall’s claims.”

Hall’s argument is a variation of an argument that Section 230 doesn’t apply to anonymous or pseudonymous accounts. Stated that way, this case differs from a ruling like Huon v. Denton, where the plaintiff got a remarkably indulgent appellate panel to believe that the site operator could have been behind pseudonymous accounts. In contrast, this court’s opinion seemed to indicate Hall never tried that argument, and (because of California’s good anti-SLAPP law) he would have had to introduce some evidence to rebut Yahoo’s declaration–evidence Hall likely didn’t have. So future plaintiffs need not try working around Section 230 for not revealing the identity of pseudonymous accounts. It won’t work. Cf. Obado v. Magedson, Price v. Gannett, Hadley v. Gatehouse Media.

Note how UK law would reach a different conclusion on these facts.

Case citation: Hall v. Yahoo! Inc., 2017 WL 3305935 (Cal. App. Ct. Aug. 3, 2017)

Source: Eric Goldman Legal