New Media and Technology Law Blog

Category Archives: Online Content

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YouTube Protected by CDA Immunity over Claims That It Provided Material Support to Terrorists

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, … Continue Reading

Controversial “Gripe Site” Protected (Again) by the Communications Decency Act and Defeats Novel Copyright Attack with Website “Browsewrap” License to User Generated Content

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 … Continue Reading

LinkedIn Files Opening Brief with Ninth Circuit in Closely-Watched Data Scraping Dispute with hiQ

In a new development in an important scraping dispute, LinkedIn appealed the lower court’s decision to grant a preliminary injunction compelling LinkedIn to disable any technical measures it had employed to block the defendant’s data scraping activities.  LinkedIn’s brief was filed on October 3, 2017.  In it, LinkedIn asserts that the relevant issue is whether the lower … Continue Reading

Ending Data Scraping Dispute, Craigslist Reaches $31M Settlement with Instamotor

Craigslist has used a variety of technological and legal methods to prevent unauthorized parties from violating its terms of use by scraping, linking to, or accessing user postings for their own commercial purposes. For example, in April, craigslist obtained a $60.5 million judgment against a real estate listings site that had allegedly received scraped craigslist … Continue Reading

Court Issues Injunction Barring Blocking of Scraping and Holds CFAA Likely Doesn’t Apply

A Green Light for Screen Scraping? Proceed With Caution… UPDATE:  As expected, LinkedIn appealed the lower court’s decision to grant a preliminary injunction compelling LinkedIn to disable any technical measures it had employed to block the defendant’s data scraping activities.  LinkedIn’s brief was filed on October 3, 2017.  In it, LinkedIn asserts that the relevant … Continue Reading

Liability under CDA Section 230? Recent Lawsuit Tries to Flip the Script against Social Media Service

UPDATE: In late October 2016, the parties notified the court that they were in discussions to settle the matter and would jointly stipulate to a dismissal of the action without prejudice.  On November 2nd, the court dismissed the action. Title V of the Telecommunications Act of 1996, also known as the “Communications Decency Act of … Continue Reading

Craigslist Files Another Suit against Data Scraper

For years, craigslist has aggressively used technological and legal methods to prevent unauthorized parties from scraping, linking to or accessing user postings for their own commercial purposes.  In a prior post, we briefly discussed craigslist’s action against a certain aggregator that was scraping content from the craigslist site (despite having received a cease and desist … Continue Reading

Tenth Circuit Affirms Lower Court Ruling on Meaning of “User” in DMCA §512(c) Safe Harbor

Title II of the Digital Millennium Copyright Act (DMCA) offers safe harbors for qualifying service providers to limit their liability for claims of copyright infringement. To benefit from the Section 512(c) safe harbor, a storage provider must establish that the infringing content was stored “at the direction of the user.”  17 U.S.C. § 512(c)(1).  The … Continue Reading

FTC Issues Enforcement Policy Statement on Native Advertising in New Media

Digital media marketers are aggressively increasing the use of so-called sponsored content, or native advertising to reach new customers.  Particularly with the growing use of ad blockers on web and mobile browsers, marketers have sought to present advertising in a new form that can circumvent automated blocking and somehow capture the attention of users who … Continue Reading

Section 230 of the Communications Decency Act: More Lessons to Be Learned

Courts continue to struggle with the application of CDA immunity to shield service provider defendants from liability in extreme cases. In this case, the Washington Supreme Court, in a 6-3 decision, affirmed the lower court’s decision to allow a suit to proceed against classified service Backpage.com surrounding the sexual assault of several minors by adult customers … Continue Reading

Who Exactly Is a ‘User’ under the DMCA Safe Harbor?

The DMCA was enacted in 1998 to preserve “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in a digital networked environment.”  As part of this implicit bargain, Title II of the DMCA offers safe harbors for qualifying service providers to limit their liability … Continue Reading

Emergence of Live Streaming Apps Brings Up Copyright, Privacy, Legal Concerns

The big fight may be over, but the implications of Mayweather vs. Pacquiao with respect to real-time, one-to-many streaming of video through apps like Meerkat and Periscope are still rippling through the media industry. In short, livestreaming apps allow anyone with a smartphone to effortlessly broadcast live video to social media followers and the wider … Continue Reading

California Supreme Court Denies Review of Ruling Allowing Restaurant Owner’s False Advertising Claims to Proceed Against Yelp

On November 12, 2014, the California Supreme Court denied review of the California Court of Appeals decision in Demetriades v. Yelp, Inc., 2014 WL 3661491 (Cal. App. July 24, 2014), which allowed a restaurant owner to proceed with false advertising and other claims against the consumer review site Yelp based upon Yelp’s marketing claims regarding … Continue Reading

Website Marketing Statements: The Achilles’Heel to CDA Protection?

It’s no secret that local directory/consumer review websites are popular among consumers looking for recommendations before dining out, hiring a contractor, or even picking a dentist or day spa. Yelp reported around 138 million monthly unique visitors in the second quarter of 2014, searching among over 61 million local reviews.  The bottom line is that … Continue Reading

Sixth Circuit Reinforces CDA Immunity – Reverses Lower Court in Jones v. Dirty World

On June 16th, 2014, the Sixth Circuit reversed the lower court’s holding that the gossip site, TheDirty.com, was responsible for its users’ defamatory posts and could not rely on immunity under CDA Section 230.   The appeals court ruled that even though the gossip site selected and edited user-generated posts for posting and added non-defamatory, albeit … Continue Reading

Staving Off Scrapers of User-Generated Content with Electronic Copyright Transfers… A Legal (But, Perhaps Not a Practical) Solution

It’s a problem that has vexed website owners since the days of the dot-com boom – how to make certain user-generated content available to users or subscribers, but also prevent competitors and other unauthorized parties from scraping, linking to or otherwise accessing that content for their own commercial purposes. The law on scraping and linking … Continue Reading

Trade Dress Can Be Viable Means of Protecting Websites from Competitor’s Look-Alike Sites

Somewhere between a well-recognized website design like Google’s home page and a fledgling e-commerce venture built with free web building software lives most other websites.  Depending on the investment in the development and the operator’s design ethic, some websites may display unique, distinctive portals that are key to attracting and retaining customers.  For those with … Continue Reading

The First Amendment Goes Digital – Clicking “Like” on Facebook is Speech

With around 1.15 billion members, Facebook is a massive, global forum for communicating with friends and the world.  For many users, it often feels as if their news feeds are clogged with vapid comments about the weather, meal choices or the ever-present need for coffee.  But under other circumstances, such as the Arab Spring or … Continue Reading

New California Law Impacts Use of Information from Minors, Offers Right to Delete

Law Targets Sites and Mobile Apps Directed to Minors, Offers “Online Eraser”      Likely to Have Nationwide Effect On July 1st of this year, new amendments to the Children’s Online Privacy Protection Act Rule (COPPA Rule) came into effect, with perhaps the most pronounced changes being the expansion of COPPA to apply to geolocation … Continue Reading

Sixth Circuit Affirms ‘Dirtiest Hotel’ Defamation Ruling

We previously wrote about a Tennessee district court’s decision holding that a hotel’s inclusion at the top of the 2011 TripAdvisor “Dirtiest Hotels” list constituted hyperbolic opinion and rhetorical exaggeration, and thus was not actionable under Tennessee defamation law.  This past month, a circuit court upheld the ruling. On appeal, the Sixth Circuit affirmed the … Continue Reading

Sixth Circuit to Construe Scope of CDA Section 230 Immunity on Appeal of Unusual Jones v. Dirty World Decision

How can a website operator lose the broad immunity for liability associated with user-generated content conferred by Section 230 of the Communications Decency Act (CDA)? Section 230 has been consistently interpreted by most courts to protect website operators against claims arising out of third-party content, despite some less than honorable conduct by operators.  See, for … Continue Reading

Assignment of Copyright through Terms of Use: Does E-Sign Make It OK? A Tool for B2B Sites Dealing with Unauthorized Access to Their Content?

It is a common practice for Web site providers who accept submissions of user-generated content to include a license provision in their “Terms of Use” to obtain rights to use the content. Rather than relying on the uncertain scope of an implied license, the provider can clarify, and hopefully avoid disputes over, the scope of … Continue Reading

This Is One of the Top Ten Best Blog Posts Ever Written about Online Defamation

UPDATE: On appeal, the Sixth Circuit affirmed the lower court’s grant of TripAdvisor’s motion to dismiss, ruling that the plaintiff could not prove falsity on its defamation claim because the placement of hotels on TripAdvisor’s list constituted protected opinion.  The opinion is discussed in a follow-up post. Although we have confidence in the quality of … Continue Reading

State Appeals Court Concludes Employer Not Protected by CDA Section 230 in Employee Stalking Case, and Seems to Shrink the Statute along the Way

An Illinois state appeals court recently held that although an employer that provided network connectivity to its employees is an “interactive service provider” under Section 230 of the Communications Decency Act, the statute does not protect the employer from negligent supervision claims based upon the employee’s alleged use of the network to communicate threats to … Continue Reading
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