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Today, the President signed H.R. 1865, the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” (commonly known as “FOSTA”).  The law is intended to limit the immunity provided under Section 230 of the Communications Decency Act (“CDA Section 230”) for online services that knowingly host third-party content that promotes or facilitates sex trafficking. As drafted, the law has retroactive effect and applies even with respect to activities occurring prior to its enactment.

UPDATE: On March 19, 2018, the district court granted the defendant’s motion for certification of the court’s February 15th partial summary judgment decision for interlocutory appeal to the Second Circuit.  In allowing immediate appeal, the court agreed that its prior order “has created tremendous uncertainty for online publishers” and “given the frequency with which embedded images are ‘retweeted,’ the resolution of this legal question has an impact beyond this case.”  We will closely follow the appeal of this important copyright issue.

UPDATE: On July 17, 2018, the Second Circuit denied the petition for interlocutory appeal.

A New York district court recently held that a host of online news publishers and media websites that embedded certain tweets (containing unauthorized uploads of plaintiff’s copyrighted photo) on their websites violated the plaintiff’s exclusive display right, despite the fact that the image at issue was hosted on a server owned and operated by an unrelated third party (i.e., Twitter).  (See Goldman v. Breitbart News Network, LLC, No. 17-03144 (S.D.N.Y. Feb. 15, 2018)).  In doing so, the court declined to adopt the Ninth Circuit’s so-called “server test” first espoused in the 2007 Perfect 10 decision, which held that the infringement of the public display right in a photographic image depends, in part, on where the image was hosted.

Under the “server test,” only a server that actually stored the photographs and “serves that electronic information directly to the user (`i.e., physically sending ones and zeroes over the Internet to the user’s browser’) could infringe the copyright holder’s rights.” In its ruling, the Goldman court granted the plaintiff’s motion for partial summary judgment, and determined that the reasoning of the Perfect 10 decision, which applied to a search engine’s image search function and display of full-size images hosted on third-party servers to a user, was not applicable to the embedding practices the media sites engaged in. 

A Canadian appellate court ruled that a lower court had jurisdictional authority to issue a production order to craigslist based upon its virtual (but not physical) presence in British Columbia. The production order requested that Craigslist produce to Canadian officials documents relating to a user post in connection with a criminal investigation. (British Columbia (Attorney General) v. Brecknell, 2018 BCCA 5 (Jan. 9, 2018)).

This decision highlights another situation where a court blurred the distinction between a physical and virtual presence of a corporation that engages in global e-commerce.  Indeed, we had written about an important Canadian decision last year that involved an American company objecting to an order to delist certain search results globally.  With U.S. companies already concerned about the territorial scope of the EU’s GDPR, they also have to address legal risks associated with jurisdiction by a virtual presence north of the border (and possibly other jurisdictions). 

In a blog post last month, Google announced that it would extend certain commitments it made to the FTC in 2012 that were set to expire relating to, among other things,  the scraping of third-party content for use on certain Google “vertical search” properties such as Google Shopping.  The announcement came days before the commitments were set to expire on December 27th and months after Yelp had claimed that Google was not living up to its promises by allegedly scraping Yelp local business photos for use in certain Google results (e.g., local business listings).

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 decision that clarified aspects of the video privacy landscape, the Ninth Circuit affirmed the dismissal of an action alleging a violation of the Video Privacy Protection Act (VPPA) based on an assertion that ESPN’s WatchESPN Roku channel had shared a user’s Roku device number and video viewing history with a third-party analytics company for targeted advertising purposes.  (Eichenberger v. ESPN, Inc., No. 15-35449 (9th Cir. Nov. 29, 2017)).  The appeals court found that such a disclosure of a device identifier did not constitute “personally identifiable information” (PII) under the VPPA.  In doing so, the court declined to take a broad interpretation of the 1980s era statute originally aimed at video stores, but which in recent years has been applied to online video streaming services and mobile and video streaming apps.

UPDATE: In June 2021, the Ninth Circuit affirmed the dismissal of claims in the Gonzalez case, mostly on § 230 grounds. Subsequently, on October 3, 2022, the Supreme Court granted certiorari in Gonzalez (see our follow-up post).

UPDATE:  In a subsequent opinion, the court dismissed the plaintiffs’ third amended complaint. (See Gonzalez v. Google, Inc., 335 F.Supp.3d 1156 (N.D. Cal. 2018)).

Following the reasoning of several past decisions, a California district court dismissed claims against Google under the Anti-Terrorism Act (ATA), 18 U.S.C. § 2333, for allegedly providing “material support” to ISIS by allowing terrorists to use YouTube  (temporarily, before known accounts are terminated) as a tool to facilitate recruitment and commit terrorism.  (Gonzalez v. Google, Inc., 2017 WL 4773366 (N.D. Cal. Oct. 23, 2017)). The court rejected the plaintiffs’ arguments that Google provided the terrorists with material support by allowing them to sign up for accounts (or regenerate shuttered accounts) and then allegedly serve targeted ads alongside such posted videos.  It ruled that even careful pleadings cannot change the fact that, in substance, plaintiffs’ attempt to hold Google liable as a publisher of the terrorist’s detestable content was barred by Section 230 of the Communications Decency Act (“CDA Section 230” or “CDA”).   

UPDATE: On April 16, 2018, the British Columbia Supreme Court denied Google’s request to amend the Canadian delisting injunction based on the argument that the injunction would “require it to violate the laws of another jurisdiction, including interfering with freedom of expression.”  (Equustek Solutions Inc. v. Jack, 2018 BCSC 610 (Apr. 16, 2018)).  The Canadian court held that the effect of the California district court order (based upon CDA immunity) is that no action can be taken against Google to enforce the injunction in U.S. courts – but that would not restrict the ability of a Canadian court to issue its own orders “directed to parties over whom it has personal jurisdiction.”

“The U.S. decision does not establish that the injunction requires Google to violate American law. That would be the case if, for example, the [defendants] obtained an order from a U.S. court requiring Google to link to their websites. But there is no suggestion that any U.S. law prohibits Google from de-indexing those websites, either in compliance with the injunction or for any other reason. Absent the injunction, Google would be free to choose whether to list those websites and the injunction restricts that choice, but injunctions frequently restrain conduct that would otherwise be prima facie lawful. A party being restricted in its ability to exercise certain rights is not the same thing as that party being required to violate the law.”

In a decision that sets up a potential international comity showdown, a California district court granted Google’s request for a preliminary injunction preventing enforcement in the U.S. of a Canadian court order that compelled Google to globally de-list certain search results of a former distributor that had allegedly used its websites to unlawfully sell the defendant Equustek Solutions’s (“Equustek”) intellectual property. (Google LLC v. Equustek Solutions Inc., 2017 WL 5000834 (N.D. Cal.  Nov. 2, 2017)).

In granting Google’s request for a preliminary injunction, the court found that Google likely satisfied all three elements of qualifying for immunity under Section 230 of the Communications Decency Act, 47 U.S.C. §230(c)(1) (the “CDA” or “Section 230”) as a service provider that linked to third-party content, and that the Canadian court’s order implicated online free speech concerns.  Indeed, the court concluded its opinion with language that surely buoyed many online providers and open internet advocates that had previously expressed concerns about the extraterritorial effort of the Canadian order:

“By forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals of Section 230 immunity and threatens free speech on the global internet.”

The controversial consumer gripe site, RipoffReport.com, is at it again.  The First Circuit recently affirmed a lower court’s ruling that RipoffReport.com was entitled to immunity under Section 230 of the Communications Decency Act, 47 U.S.C. §230(c)(1) (the “CDA” or “Section 230”) for defamation-related claims based on certain user posts on its site. (Small Justice LLC v. Xcentric Ventures LLC, 2017 WL 4534395 (1st Cir. Oct. 11, 2017)). This is the latest in a string of victories for RipoffReport.com on that issue. In this case, RipoffReport.com also successfully relied on its website “terms of use” to fend off a novel copyright attack from the plaintiff, the successor-in-interest to the copyright in the user postings at issue.  

This past week, the Supreme Court denied the petitions for certiorari in two noteworthy Ninth Circuit decisions that had interpreted the scope of liability under the federal Computer Fraud and Abuse Act (CFAA) in the context of wrongful access of company networks by employees and in instances involving unwanted data…