In a brief, unpublished opinion, the Sixth Circuit affirmed the dismissal of right of publicity and privacy claims against a host of self-publishing platforms and service providers for distributing an erotic (and purported “less than tasteful”) book whose cover contained an unauthorized copy of the plaintiffs’ engagement photo because the plaintiffs failed to plead more than an “incidental” use of the photo by the service providers. (Roe v. Amazon.com, No. 16-3987 (6th Cir. Nov. 21, 2017) (unpublished)).

This dispute initially raised our interest because it raised the larger issues of how to define a “publisher” and “distributor” in the modern e-commerce environment and to what extent an ebook platform or print-on-demand service could be protected for distributing third-party content by the immunity provided by Section 230 of the Communications Decency Act (“CDA Section 230”).  While we anticipated that such issues would get a full examination on appeal, the Sixth Circuit sidestepped these novel issues and decided the case on the merits of the privacy claims. 

In a dispute that touches on the intersection of copyright, contract law and cloud technology, the Second Circuit affirmed the dismissal of copyright claims against Barnes & Noble (“B&N”) related to ebook samples stored on a user’s B&N-provided cloud-based locker. Notably, the Second Circuit dismissed the case on contractual grounds, declining the opportunity to opine on two important modern copyright doctrines that are often implicated when users store copyrighted content on the cloud.

In Smith v. BarnesandNoble.com, LLC, 2016 WL 5845690 (2d Cir. Oct. 6, 2016), an author contracted with Smashwords, an online ebook distributor, to market his book.  In accordance with this contract, the book was offered to B&N, which listed the book for sale on bn.com and made free samples available.  When a B&N customer downloaded a free sample (or purchased an ebook) the content was stored on a cloud-based digital locker associated with the customer’s account from which the content could be downloaded to devices whenever and wherever the user wanted.

We live in a world that has rapidly redefined and blurred the roles of the “creator” of content, as compared to the roles of the “publisher” and “distributor” of such content.  A recent case touches on some of the important legal issues associated with such change.  Among other things, the