Last August, in GG v. Salesforce, a split Seventh Circuit panel ruled that Salesforce didn’t qualify for Section 230 in a FOSTA case. I never blogged that opinion for two reasons. First, it came at a busy time (I was just ramping up for the semester). Second, the opinion was so clearly wrong and garbled that I expected the Seventh Circuit would take the case en banc and issue a more coherent and less terrible opinion that I would then blog. In October, the Seventh Circuit denied an en banc rehearing, leaving the jurisprudential mess in place. I can’t bring myself to go back and blog that opini ..read more

As you surely know, the state of New York is prosecuting Donald Trump for allegedly falsifying business records in connection with the hush-payments to Stormy Daniels. The judge overseeing the case is well aware of Trump’s shambolic approach to high-stakes litigation, including his overt attempts to publicly pressure the judge, the judge’s staff, jurors, his litigation opponents, and witnesses. At the prosecution’s request, the court ordered Trump to restrict any such extrajudicial efforts (see appendix below for the text). To the surprise of no one, in a manner not dissimilar to a toddler’s r ..read more

35 U.S.C. § 299 limits joinder in patent cases to defendants who infringe using “the same accused product or process.” Congress enacted this requirement to restrict patent trolls who were filing lawsuits against defendants who had nothing in common but the allegation that they were infringing the same patent. Section 299 should cast a long shadow over SAD Scheme patent cases, which routinely attempt to join defendants who are engaging in parallel but independent acts of alleged infringement–exactly what Section 299 doesn’t permit. Indeed, if judges reliably raised Section 299 objections in SAD ..read more

This is a false advertising lawsuit again the mobile app game Game of Thrones: Conquest. The account formation process included a screen where a user could proceed only by clicking on the “play” button: Warner Bros. sought to send the case to arbitration. The district court disagreed. Warner Bros. gets a more favorable response on appeal to the Ninth Circuit. The appeals court says this is a sign-in wrap implementation. As such, the court considers the transaction context: users of GOTC neither purchase the game in the first instance, nor do they have to sign up for an account with Warner Br ..read more

I was honored to deliver this year’s Nies Lecture at Marquette University Law School, with the provocative (but, I hope, accurately descriptive) title “Generative AI is Doomed.” My remarks. This is my first contribution to the AI academic literature. As you can see, I take a contrarian stance about the direction that regulation is heading. As a result, I hope these remarks spark some discussion and reflection among the advocates for more regulation/”governance” of Generative AI. Technological innovation flourishes only within a thoughtfully designed legal infrastructure, and my talk explains w ..read more

This is one of several copyright cases brought by tattoo artists against videogame makers for depicting athletes bearing their tattoos. This particular case, involving tattoo artist Hayden, videogame NBA 2K, and basketball players like LeBron James, reached a jury. The jury needed only 90 minutes to determine that the defendants had proven their implied license defense, ending the case. The jury verdict form doesn’t provide any more details, but one likely inference is that getting a tattoo comes with an implied license allowing the tattooed person to be depicted in the world, including for co ..read more

I never blogged the dual state and federal rulings in the Social Media Addiction cases from last Fall. I wrote up a 4,000 word draft about the state court ruling, but the federal ruling came out before I finished it. I couldn’t blog just the state case without discussing the new development, so I planned to modify my blog post on the state court ruling to compare/contrast the federal ruling. However, life intervened, and my massive blog post got stuck in draft mode. I can’t easily track the state court litigation, but the federal litigation is a sight to behold. It’s an MDL where the plaintiff ..read more

This is a routine jawboning case. Facebook and Twitter allegedly shut down Hart’s accounts for disseminating COVID misinformation. Hart claims he was targeted by the government. The district court dismissed the case (1, 2). The Ninth Circuit affirms in a brief memo opinion. The court says simply: “As private companies, Twitter and Facebook are not subject to the Constitution’s constraints.” (Cite to O’Handley). Hart alleged Twitter and Facebook engaged in joint actions with the government. However, “Facebook and Twitter’s rights to moderate his posts arise from their user agreements with Hart ..read more

Brinan Weeks claims to be a comedian. I strongly suspect this lawsuit is an extension of his routine or that he’s using it to generate new material. He claims: he purchased a device called a Stamina Training Unit (STU) from the fleshlight.com website (the website) on or around September 21, 2021, on the basis of Interactive’s claims that the device would help him “perform better,” “last longer,” and “improve [his] sexual stamina.” Despite his frequent use of the product over several months, Weeks alleged “there was no improvement in [his] sexual performance or stamina.” Typically, allegatio ..read more

This is another case asserting that Internet access providers are liable for their subscribers’ copyright infringements. The IAP, Frontier, argued that the Supreme Court’s ruling in Taamneh modified the venerable standards for secondary copyright infringement. The court doesn’t agree. The court summarizes its holding: The Court declines to graft an analysis of secondary criminal liability for aiding and abetting terrorism onto the well-established branch of law governing secondary liability for copyright infringement. Contributory Infringement The court explains that the plaintiffs have alle ..read more