Back in October 2022, the Supreme Court granted certiorari in Gonzalez v. Google, an appeal that challenged whether YouTube’s targeted algorithmic recommendations qualify as “traditional editorial functions” protected by the CDA — or, rather, whether such recommendations are not the actions of a “publisher” and thus fall outside of CDA immunity. At the time, some … Continue Reading
Since the passage of Section 230 of the Communication Decency Act (“CDA”), the majority of federal circuits have interpreted the CDA to establish broad federal immunity to causes of action that would treat service providers as publishers of content provided by third parties. The CDA was passed in the early days of e-commerce and was … Continue Reading
On July 30, 2021, a New York district court declined to dismiss copyright infringement claims with respect to an online article that included an “embedded” video (i.e., shown via a link to a video hosted on another site). The case involved a video hosted on a social media platform that made embedding available as a … Continue Reading
Less than one week after issuing an order vacating its own March 2021 opinion in an important Communications Decency Act (“CDA”) case and granting a petition for rehearing, the Second Circuit issued a new opinion reaffirming “protection” under Section 230 of the CDA for video-sharing site Vimeo, Inc. (“Vimeo”) (Domen v. Vimeo, Inc., No. 20-616 … Continue Reading
In the past month, there have been some notable developments surrounding Section 230 of the Communications Decency Act (“CDA” or “Section 230”) beyond the ongoing debate in Congress over the potential for legislative reform. These include a novel application of CDA in a FCRA online privacy case (Henderson v. The Source for Public Data, No. … Continue Reading
On May 14, 2021, President Biden issued an executive order revoking, among other things, his predecessor’s action (Executive Order 13295 of May 28, 2020) that directed the executive branch to clarify certain provisions under Section 230 of the Communications Decency Act (“Section 230” or the “CDA”) and remedy what former President Trump had claimed was … Continue Reading
With the change in administrations in Washington, there has been a drive to enact or amend legislation in a variety of areas. However, most initiatives lack the zeal found with the bipartisan interest in “reining in social media” and pursuing reforms to Section 230 of the Communications Decency Act (CDA). As we have documented,, the parade … Continue Reading
The appetite for acquisitions and investment in online businesses has never been stronger, with many of the most attractive online opportunities being businesses that host, manage and leverage user-generated content. These businesses often rely on the immunities offered by Section 230 of the Communications Decency Act, 47 U.S.C. §230 (“Section 230” or the “CDA”) to … Continue Reading
In continuing its efforts to enforce its terms and policies against developers that engage in unauthorized scraping of user data, this week Facebook brought suit against two marketing analytics firms, BrandTotal Ltd (“BrandTotal”) and Unimania, Inc. (“Unimania”) (collectively, the “Defendants”) (Facebook, Inc. v. BrandTotal Ltd., No. 20Civ04246 (Cal. Super. Ct., San Mateo Cty Filed Oct. … Continue Reading
Section 230 of the Communications Decency Act, 47 U.S.C. §230 (“Section 230” or the “CDA”), enacted in 1996, is generally viewed as the most important statute supporting the growth of Internet commerce. The key provision of the CDA, Section 230(c)(1)(a), only 26 words long, simply states: “No provider or user of an interactive computer service … Continue Reading
The currents around the Communications Decency Act just got a little more turbulent as the White House and executive branch try to reel in the big fish of CDA reform. On July 27, 2020, the Commerce Department submitted a petition requesting the FCC initiate a rulemaking to clarify the provisions of Section 230 of the … Continue Reading
Last week, hiQ Labs, Inc. (“hiQ”) filed its brief urging the Supreme Court to deny LinkedIn Corp.’s (“LinkedIn”) petition for a writ of certiorari in the Ninth Circuit’s blockbuster ruling in hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985 (9th Cir. 2019). The principal issue in the case concerns the scope of Computer Fraud and Abuse … Continue Reading
Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. §230, enacted in 1996, is often cited as the most important law supporting the Internet, e-commerce and the online economy. Yet, it continues to be subject to intense criticism, including from politicians from both sides of the aisle. Many argue that the CDA has been … Continue Reading
In what could be prove to be an important decision within the context of scraping of “public” data, in a recent case the Eleventh Circuit reversed a lower court’s dismissal of trade secret claims relating to the scraping of insurance quotes. (Compulife Software, Inc. v. Newman, No. 18-12004 (11th Cir. May 20, 2020)). The appellate … Continue Reading
President Trump signed an Executive Order today attempting to curtail legal protections under Section 230 of the Communications Decency Act (“Section 230” or the “CDA”). The Executive Order strives to clarify that Section 230 immunity “should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum … Continue Reading
UPDATE: On the afternoon of May 28, 2020, the President signed the executive order concerning CDA Section 230. A copy/link to the order has not yet been posted on the White House’s website. According to news reports, the Trump Administration (the “Administration”) is drafting and the President is set to sign an executive order … Continue Reading
Late last month, the French data protection authority, the CNIL, published guidance surrounding considerations behind what it calls “commercial prospecting,” meaning scraping publicly available website data to obtain individuals’ contact info for purposes of selling such data to third parties for direct marketing purposes. The guidance is noteworthy in two respects. First, it speaks to … Continue Reading
Despite continued scrutiny over the legal immunity online providers enjoy under Section 230 of the Communications Decency Act (CDA), online platforms continue to successfully invoke its protections. This is illustrated by three recent decisions in which courts dismissed claims that sought to impose liability on providers for hosting or restricting access to user content and … Continue Reading
This past week, LinkedIn filed a petition for a writ of certiorari asking the Supreme Court to overturn the Ninth Circuit’s blockbuster ruling in hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985 (9th Cir. 2019). The case concerned the scope of Computer Fraud and Abuse Act (CFAA) liability associated with web scraping of publicly … Continue Reading
UPDATE: On October 13, 2020, the Supreme Court denied Malwarebytes’ petition for a writ of certiorari asking the Court to review the Ninth Circuit’s decision which had derived an implied exception to CDA Section 230(c)(2)(B) “Good Samaritan” immunity for blocking or filtering decisions when they are alleged to be “driven by anticompetitive animus.” The … Continue Reading
In an interview with the editorial board of the New York Times, published today, former Vice President Joe Biden advocated for repeal of Section 230 of the Communications Decency Act (CDA). As readers of this blog may know, the CDA offers service providers protections that underpin the hosting of much of the user-generated content (both … Continue Reading
With the online shopping season in full swing, the FTC decided that online retailers might benefit from a reminder as to the dos and don’ts for social media influencers. Thus, the FTC released a new guide, “Disclosures 101 for Social Media Influencers,” that reiterates its position about the responsibility of “influencers” to disclose “material” connections … Continue Reading
Last month, LinkedIn Corp. (“LinkedIn”) filed a petition for rehearing en banc of the Ninth Circuit’s blockbuster decision in hiQ Labs, Inc. v. LinkedIn Corp., No. 17-16783 (9th Cir. Sept. 9, 2019). The crucial question before the original panel concerned the scope of Computer Fraud and Abuse Act (CFAA) liability to unwanted web scraping of publicly available social media … Continue Reading
On October 11, 2019, LinkedIn Corp. (“LinkedIn”) filed a petition for rehearing en banc of the Ninth Circuit’s blockbuster decision in hiQ Labs, Inc. v. LinkedIn Corp., No. 17-16783 (9th Cir. Sept. 9, 2019). The crucial question before the original panel concerned the scope of Computer Fraud and Abuse Act (CFAA) liability to unwanted web … Continue Reading
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