New Essay Comparing “Due Process” Approaches in the DMCA and DSA
Technology & Marketing Law
by Eric Goldman
2d ago
As you know, I am not a fan of the EU’s DSA. Without First Amendment guardrails in the EU, the DSA represents a comprehensive government intrusion into the editorial processes of UGC services–with surely more intrusions to come. This will not end well. One of the DSA’s standout features is that it imposes due process-like obligations on non-governmental actors, as if there is no meaningful distinction between taxpayer-funded public actors and market-supported private actors. This paradigm also appears in the Florida and Texas social media censorship laws, such as the notice-and-appeal obligati ..read more
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Court Says Twitter Misused Litigation to Punish Defendants for Their Speech–X v. CCDH
Technology & Marketing Law
by Eric Goldman
4d ago
Self-proclaimed free-speech absolutist Elon Musk is notoriously thin-skinned when it comes to criticism directed at him. (As the phrase goes, “he can dish it out, but he can’t take it“). This well-publicized lawsuit is an example of Musk waging lawfare over a critic’s speech. Judge Breyer of the Northern District of California had none of it. He calls out Twitter for its bad choice: This case is about punishing the Defendants for their speech…X Corp. has brought this case in order to punish CCDH for CCDH publications that criticized X Corp.—and perhaps in order to dissuade others who might wi ..read more
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Section 230 Applies to Claims Over Hijacked Accounts (Except Maybe Verified Accounts)–Wozniak v. YouTube
Technology & Marketing Law
by Eric Goldman
6d ago
More Bitcoin litigation . This time, malefactors hijacked popular YouTube channels and uploaded videos promoting Bitcoin scams: First, scammers will breach YouTube’s security to unlawfully gain access to verified and popular YouTube channels with tens or hundreds of thousands of subscribers. The scammers then transfer ownership or control of the channel to themselves or a co-conspirator, rename the channel to impersonate tech celebrities or companies, and delete the channel’s pre-existing content. Next, they upload and play scam videos they have created using pre-existing images and videos of ..read more
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Judge Hammers SEC for Lying to Get an Ex Parte TRO–SEC v. Digital Licensing
Technology & Marketing Law
by Eric Goldman
1w ago
As I’ve recently mentioned, ex parte proceedings are error-prone because the judge hears only one side of the story and doesn’t get enough context to spot the possible flaws. This systematic–and avoidable–risk of errors has materially contributed to the SAD Scheme’s success. For example, rightsowners claim that defendants are international, even if they aren’t, and that the defendants’ funds need to restrained because they are at risk of moving to hard-to-reach international bank accounts, even if the defendants are domestic and using domestic banks. Because the judge gives the rightsowners th ..read more
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The Ninth Circuit’s Broad (and Wrong) Standards for Conversion–Taylor v. Google (Guest Blog Post)
Technology & Marketing Law
by Eric Goldman
2w ago
by Kieran McCarthy Recently, there has been a revival of anemic trespass to chattels claims in California. And so perhaps we should not be surprised that California courts have opened the door to a resurgence in anemic digital conversion claims, as well. If Taylor v. Google is any indication, that door is now very much ajar. On February 28th, the Ninth Circuit held that plaintiffs had properly pleaded a conversion claim against Google because Google’s passive data transfers of cellular data had behaved in a way that was inconsistent with the plaintiffs’ property interests. In so doing, they re ..read more
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Tubi’s TOS Formation Fails–Campos v. Tubi
Technology & Marketing Law
by Eric Goldman
2w ago
This is a Video Privacy Protection Act (VPPA) case against the video streaming platform Tubi. Tubi sought to send the case to arbitration per its TOS. The court says no. The account signup page on mobile devices looked like this (Screen 1): Note the unusual “skip” link in the upper right–what happens if users select it? If users select “continue with email,” as the court assumes the named plaintiff Campos did, they see this (quite ugly) Screen 2: What is that background? Blurred out porn? As usual nowadays for TOS formation cases, the court starts by getting the -wrap nomenclature out of th ..read more
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“Ringless Voicemail” Vendor Wins Section 230 Defense Against FTC–US v. Stratics Networks
Technology & Marketing Law
by Eric Goldman
2w ago
[This is one of those opinions that is a slog to blog because the court’s statutory analysis made my head hurt. If this opinion confuses you, welcome to the club. FWIW, “Slog to Blog” would make a good band name.] Stratics Networks offers ringless voicemail and VOIP services. The court explains that, with ringless voicemails, “users can mass deliver prerecorded messages directly to recipients’ voicemail inboxes without causing their phones to ring or giving recipients the opportunity to answer or block the call.” [Note 1: I HATE getting voicemails. I don’t believe I’m the only person who feels ..read more
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The SAD Scheme as an Institutional Failure
Technology & Marketing Law
by Eric Goldman
2w ago
[These are my rough-draft talk notes from a recent workshop of trademark law professors.] The SAD Scheme involves a trademark owner suing dozens/hundreds of defendants using a sealed complaint, getting an ex parte TRO, and then having the online marketplaces freeze the defendants’ accounts and money. The TRO acts like a supernotice compared to the traditional takedown notice: it targets sellers, not individual items; and it implicates their cash from all of their sales, not just the allegedly infringing listings. As a super-notice, it can produce cash payouts from settlements or default judgme ..read more
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Section 230 Doesn’t Apply to Sending Non-Consensual Pornography by Postal Mail–Doe v. Spencer
Technology & Marketing Law
by Eric Goldman
3w ago
Spencer’s wife had an extra-marital affair with Doe. Doe sent “photographs and screen shots of sexually explicit images” to the wife. Spencer, the husband, came into possession of these materials via unspecified means. He assembled various collages of the images and sent copies by postal mail to Doe and “his ex-wife, his adult child, several of his neighbors, and his place of business.” Doe sued Spencer for VAWRA, IIED, negligence, and public disclosure of private facts. Spencer (proceeding pro se) filed a motion to dismiss on several grounds, including Section 230. The court denied the motion ..read more
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Print-on-Demand Service Defeats Fish Illustrator’s Copyright Claim–Tomelleri v. Sunfrog
Technology & Marketing Law
by Eric Goldman
3w ago
Tomelleri (who has appeared on this blog before) illustrates fishes (see court exhibit on the right). He sued a print-on-demand service (Sunfrog) over alleged IP violations of his illustrations. If that rings a bell, it’s because just yesterday I blogged on a DIFFERENT fish painter, DeYoung, who also brought an IP lawsuit against a print-on-demand service (Pixels). New practice area alert for law students: the specialty niche of fish artists asserting IP claims against print-on-demand services. Note: this case is functionally moot because the defendant, Sunfrog, is already defunct. RIP. As I’v ..read more
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