Attorney Evan Brown

March 27, 2018 First Amendment, Trademarks

Can YouTube be sued for censorship? A court weighs in.

Prager University sued Google LLC and YouTube, LLC, alleging that defendants discriminated against plaintiff’s conservative political viewpoints by restricting its videos on YouTube. Plaintiff asked the court to issue a preliminary injunction to prevent defendants from continuing these practices and to allow plaintiff’s videos unrestricted access on the platform. Plaintiff also sought damages for alleged violations of free speech rights and other claims.

The court decided in favor of defendants. It dismissed plaintiff’s federal claims under the First Amendment and the Lanham Act and declined to exercise jurisdiction over the state law claims. Additionally, the court denied plaintiff’s motion for a preliminary injunction.

The court ruled that defendants, as private entities, were not state actors and therefore not bound by the First Amendment. It found that YouTube’s platform, even if widely used for public discourse, does not transform it into a public forum subject to constitutional free speech protections. Regarding the Lanham Act, the court concluded that statements about YouTube being a platform for free expression were non-actionable “puffery” and not specific enough to be considered false advertising.

In dismissing plaintiff’s state law claims, the court noted that they raised complex issues of California law better suited for state courts. This decision left open the possibility for plaintiff to amend its complaint or pursue claims in state court.

Three reasons why this case matters:

Clarification of First Amendment Limits: The ruling reinforces that constitutional free speech protections apply only to government actors, not private companies.
Role of Platforms in Content Moderation: The case highlights ongoing debates about the responsibilities of tech companies in regulating content and their impact on public discourse.
Defining Puffery vs. Advertising: The court’s finding that statements about neutrality were mere puffery provides insight into how courts assess claims of false advertising.

Prager University v. Google LLC, 2018 WL 1471939 (N.D. Cal. March 26, 2018)

February 24, 2018 Defamation, Section 230

Section 230 protected Google in lawsuit over blog post

Defendant used Google’s Blogger service to write a post – about plaintiffs’ business practices – that plaintiffs found objectionable. So plaintiffs sued Google in federal court for defamation, tortious interference with a business relationship, and intentional infliction of emotional distress. The lower court dismissed the case on grounds that the Communications Decency Act (at 47 U.S.C. §230) immunized Google from liability for the publication of third party content.

Plaintiffs sought review with the U.S. Court of Appeals for the District of Columbia. On appeal, the court affirmed the dismissal. Applying a three part test the court developed in Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014) (which in turn applied analysis from the leading case of Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997)), the court held that Section 230 entitled Google to immunity because: (1) Google was a “provider or user of an interactive computer service,” (2) the relevant blog post contained “information provided by another information content provider,” and (3) the complaint sought to hold Google liable as “the publisher or speaker” of the blog post.

The court rejected defendant’s argument that in establishing and enforcing its Blogger Content Policy, Google influenced and thereby created the content it published. It held that Google’s role was strictly one of “output control” – because Google’s choice was limited to a “yes” or a “no” decision whether to remove the post, its action constituted “the very essence of publishing.” Since Section 230 immunizes online defendants against complaints seeking to hold them as the publisher of content, the lower court properly dismissed the action.

Bennett v. Google, LLC, 882 F.3d 1163 (D.C. Cir., February 23, 2018)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

January 31, 2018 Section 230, Social Media

Ninth Circuit upholds decision in favor of Twitter in terrorism case

Tamara Fields and Heather Creach, representing the estates of their late husbands and joined by Creach’s two minor children, sued Twitter, Inc. Plaintiffs alleged that the platform knowingly provided material support to ISIS, enabling the terrorist organization to carry out the 2015 attack in Jordan that killed their loved ones. The lawsuit sought damages under the Anti-Terrorism Act (ATA), which allows U.S. nationals injured by terrorism to seek compensation.

Plaintiffs alleged that defendant knowingly and recklessly provided ISIS with access to its platform, including tools such as direct messaging. Plaintiffs argued that these services allowed ISIS to spread propaganda, recruit followers, raise funds, and coordinate operations, ultimately contributing to the attack. Defendant moved to dismiss the case, arguing that plaintiffs failed to show a direct connection between its actions and the attack. Defendant also invoked Section 230 of the Communications Decency Act, which shields platforms from liability for content created by users.

The district court agreed with defendant and dismissed the case, finding that plaintiffs had not established proximate causation under the ATA. Plaintiffs appealed, but the Ninth Circuit upheld the dismissal. The appellate court ruled that plaintiffs failed to demonstrate a direct link between defendant’s alleged support and the attack. While plaintiffs showed that ISIS used defendant’s platform for various purposes, the court found no evidence connecting those activities to the specific attack in Jordan. The court emphasized that the ATA requires a clear, direct relationship between defendant’s conduct and the harm suffered.

The court did not address defendant’s arguments under Section 230, as the lack of proximate causation was sufficient to resolve the case. Accordingly, this decision helped clarify the legal limits of liability for platforms under the ATA and highlighted the challenges of holding technology companies accountable for how their services are used by third parties.

Three Reasons Why This Case Matters:

Sets the Bar for Proximate Cause: The ruling established that a direct causal link is essential for liability under the Anti-Terrorism Act.
Limits Platform Liability: The decision underscores the difficulty of holding online platforms accountable for misuse of their services by bad actors.
Reinforces Section 230’s Role: Although not directly addressed, the case highlights the protections Section 230 offers to tech companies.

Fields v. Twitter, Inc., 881 F.3d 739 (9th Cir. 2018)

December 15, 2017 First Amendment, Social Media

Pastor’s First Amendment rights affected parole conditions barring social media use

Plaintiff – a Baptist minister on parole in California – sued several parole officials, arguing that conditions placed on his parole violated plaintiff’s First Amendment rights. Among the contested restrictions was a prohibition on plaintiff accessing social media. Plaintiff claimed this restriction infringed on both his right to free speech and his right to freely exercise his religion. Plaintiff asked the court for a preliminary injunction to stop the enforcement of this condition. The court ultimately sided with plaintiff, ruling that the social media ban was unconstitutional.

The Free Speech challenge

Plaintiff argued that the parole condition prevented him from sharing his religious message online. As a preacher, he relied on platforms such as Facebook and Twitter to post sermons, connect with congregants who could not attend services, and expand his ministry by engaging with other pastors. The social media ban, plaintiff claimed, silenced him in a space essential for modern communication.

The court agreed, citing the U.S. Supreme Court’s ruling in Packingham v. North Carolina, which struck down a law barring registered sex offenders from using social media. In Packingham, the Court emphasized that social media platforms are akin to a modern public square and are vital for exercising free speech rights. Similarly, the court in this case found that the blanket prohibition on social media access imposed by the parole conditions was overly broad and not narrowly tailored to address specific risks or concerns.

The court noted that plaintiff’s past offenses, which occurred decades earlier, did not involve social media or the internet, undermining the justification for such a sweeping restriction. While public safety was a legitimate concern, the court emphasized that parole conditions must be carefully tailored to avoid unnecessary burdens on constitutional rights.

The Free Exercise challenge

Plaintiff also argued that the social media ban interfered with his ability to practice his religion. He asserted that posting sermons online and engaging with his congregation through social media were integral parts of his ministry. By prohibiting social media use, the parole condition restricted his ability to preach and share his faith beyond the physical boundaries of his church.

The court found this argument compelling. Religious practice is not confined to in-person settings, and plaintiff demonstrated that social media was a vital tool for his ministry. The court noted that barring a preacher from using a key means of sharing religious teachings imposed a unique burden on religious activity. Drawing on principles from prior Free Exercise Clause cases, the court held that the parole condition was not narrowly tailored to serve a compelling government interest, as it broadly prohibited access to all social media regardless of its religious purpose.

The court’s decision

The court granted plaintiff’s request for a preliminary injunction, concluding that he was likely to succeed on his claims under both the Free Speech Clause and the Free Exercise Clause of the First Amendment. The ruling allowed plaintiff to use social media during the litigation, while acknowledging the government’s legitimate interest in monitoring parolees. The court encouraged less restrictive alternatives, such as targeted supervision or limiting access to specific sites that posed risks, rather than a blanket ban.

Three reasons why this case matters:

Intersection of Speech and Religion: The case highlights how digital tools are essential for both free speech and the practice of religion, especially for individuals sharing messages with broader communities.

Limits on Blanket Restrictions: The ruling reaffirms that government-imposed conditions, such as parole rules, must be narrowly tailored to avoid infringing constitutional rights.

Modern Application of First Amendment Rights: By referencing Packingham, the court acknowledged the evolving role of social media as a platform for public discourse and religious expression.

Manning v. Powers, 281 F. Supp. 3d 953 (C.D. Cal. Dec. 13, 2017)

November 14, 2017 Contracts

Plaintiff could not have agreed to arbitrate claims over website before the website was even created

Ticketmaster.com terms of use did not govern claims arising from related ticket exchange website

Plaintiff sued defendants Ticketmaster and Live Nation asserting violation of the Americans With Disabilities Act and a similar state law. He claimed that Ticketmaster’s NFL Ticket Exchange website did not provide information about wheelchair-accessible seating. Defendants filed a motion asking the court to compel the parties to arbitrate the case. The court denied the motion.

Neither party argued that the terms and conditions of the Ticket Exchange website governed the dispute between them. Defendants instead argued that the clickwrap agreement governing previous purchases defendant had made from ticketmaster.com for concerts applied to plaintiff’s use of the Ticket Exchange website.

This clickwrap agreement contained an arbitration provision that changed over time. Before November 2012, the provision contained broad language stating that the parties “agree[d] to arbitrate all disputes and claims between [them].” The language after November 2012 limited the arbitration provision to any “dispute or claim relating in any way to [plaintiff’s] use of the Site, or to products or services sold or distributed by … or through [defendants].” The definition of “Site” did not include the Ticket Exchange website.

The court rejected defendants’ arguments that the ticketmaster.com terms of service governed plaintiff’s use of the Ticket Exchange website.

The pre-November 2012 terms governed only “the use of ticketmaster.com and mobile versions thereof.” The court observed that at the time, the Ticket Exchange website did not yet exist, and that ticketmaster.com contained a “section” serving the same purpose as the now-existing Ticket Exchange website. Accordingly, the court held that plaintiff would not be deemed to have agreed to arbitrate claims relating to his use of a website before the website was even created.

As to the November 2012-onward terms, the court easily determined those did not apply, as they did, by their own terms, apply only to the Site (which did not include Ticket Exchange). And since Plaintiff had made no purchase on the Ticket Exchange website, the scope of the terms purporting to cover “products or services sold or distributed by … or through [defendants]” still failed to reach the Ticket Exchange website.

Long v. Live Nation Worldwide, 2017 WL 5194978 (W.D. Wash., November 9, 2017)

November 10, 2017 Cybersquatting

UDRP Panel finds three letter domain name was not registered and used in bad faith

(This is a cross post from UDRP Tracker.)

UDRP complainant manufactures cameras used in science and industry, and claimed to be the sole user of the letters “PCO” in commerce. The respondent acquired the disputed domain name in 2008 and never established an active website there. The UDRP Panel refused to transfer the disputed domain name to the complainant, finding that the respondent did not regsiter and use the disputed domain name in bad faith.

In making this finding, the Panel observed:

Contrary to the complainant’s assertions that it was the exclusive user of the letters PCO, it is in fact common three-letter combination.
A number of UDRP cases about three-letter domain names show that such terms are generally in widespread use as acronyms and it is conceivable that they are registered for bona fide purposes.
The complainant claimed to have a stong worldwide reputation but actually operated only in a niche, so there was nothing to support the complainant’s claim that the respondent was “obviously” aware of the complainant when it acquired the disputed domain name.
The complainant overstated its case when it claimed that there was no conceivable good faith use to which the disputed domain name could be put.

For these reasons, despite the fact that the respondent did not reply in the action, the Panel denied the complaint.

PCO AG v. Register4Less Privacy Advocate, 3501256 Canada, Inc., WIPO Case No. D2017-1778 (October 30, 2017)

November 9, 2017 Section 230

Anti-malware provider immune under CDA for calling competitor’s product a security threat

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Plaintiff anti-malware software provider sued defendant – who also provides software that protects internet users from malware, adware etc. – bringing claims for false advertising under the Section 43(a) of Lanham Act, as well as other business torts. Plaintiff claimed that defendant wrongfully revised its software’s criteria to identify plaintiff’s software as a security threat when, according to plaintiff, its software is “legitimate” and posed no threat to users’ computers.

Defendant moved to dismiss the complaint for failure to state a claim upon which relief may be granted. It argued that the provisions of the Communications Decency Act at Section 230(c)(2) immunized it from plaintiff’s claims.

Section 230(c)(2) reads as follows:

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in [paragraph (A)].

Specifically, defendant argued that the provision of its software using the criteria it selected was an action taken to make available to others the technical means to restrict access to malware, which is objectionable material.

The court agreed with defendant’s argument that the facts of this case were “indistinguishable” from the Ninth Circuit’s opinion in in Zango, Inc. v. Kaspersky, 568 F.3d 1169 (9th Cir. 2009), in which the court found that Section 230 immunity applied in the anti-malware context.

Here, plaintiff had argued that immunity should not apply because malware is not within the scope of “objectionable” material that it is okay to seek to filter in accordance with 230(c)(2)(B). Under plaintiff’s theory, malware is “not remotely related to the content categories enumerated” in Section 230(c)(2)(A), which (B) refers to. In other words, the objectionableness of malware is of a different nature than the objectionableness of material that is obscene, lewd, lascivious, filthy, excessively violent, harassing. The court rejected this argument on the basis that the determination of whether something is objectionable is up to the provider’s discretion. Since defendant found plaintiff’s software “objectionable” in accordance with its own judgment, the software qualifies as “objectionable” under the statute.

Plaintiff also argued that immunity should not apply because defendant’s actions taken to warn of plaintiff’s software were not taken in good faith. But the court applied the plain meaning of the statute to reject this argument – the good faith requirement only applies to conduct under Section 230(c)(2)(A), not (c)(2)(B).

Finally, plaintiff had argued that immunity should not apply with respect to its Lanham Act claim because of Section 230(e)(2), which provides that “nothing in [Section 230] shall be construed to limit or expand any law pertaining to intellectual property.” The court rejected this argument because although the claim was brought under the Lanham Act, which includes provisions concerning trademark infringement (which clearly relates to intellectual property), the nature of the Lanham Act claim here was for unfair competition, which is not considered to be an intellectual property claim.

Enigma Software Group v. Malwarebytes Inc., 2017 WL 5153698 (N.D. Cal., November 7, 2017)

November 8, 2017 First Amendment

Facebook did not violate user’s constitutional rights by suspending account for alleged spam

Plaintiff sued Facebook and several media companies (including CNN, PBS and NPR) after Facebook suspended his account for alleged spamming. Plaintiff had posted articles and comments in an effort to “set the record straight” regarding Kellyanne Conway’s comments on the “Bowling Green Massacre”. Plaintiff claimed, among other things, that Facebook and the other defendants violated the First, Fourth, Fifth, and Fourteenth Amendments.

The court granted defendants’ motion to dismiss for failure to state a claim. It observed the well-established principle that these provisions of the constitution only apply to governmental actors – and do not apply to private parties. Facebook and the other media defendants could not plausibly be considered governmental actors.

It also noted that efforts to apply the First Amendment to Facebook have consistently failed. See, for example, Forbes v. Facebook, Inc., 2016 WL 676396, at *2 (E.D.N.Y. Feb. 18, 2016) (finding that Facebook is not a state actor for Section 1983 First Amendment claim); and Young v. Facebook, Inc., 2010 WL 4269304, at *3 (N.D. Cal. Oct. 25, 2010) (holding that Facebook is not a state actor).

Shulman v. Facebook et al., 2017 WL 5129885 (D.N.J., November 6, 2017)

November 7, 2017 Uncategorized

Expedia’s online clickwrap agreement upheld

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Plaintiff airline ticket buyer sued Expedia in court for, among other things, fraud, claiming that he was entitled to a refund of the price of his ticket because he had to cancel for medical reasons. Expedia moved to compel arbitration. The court granted the motion.

It found that plaintiff manifested his clear agreement to the arbitration clause in Expedia’s online terms and conditions when he selected the “complete booking” button on the “Review and book your trip” screen during his ticket purchase process.

It also found that each of plaintiff’s claims were encompassed by the arbitration agreement found in the online terms. The arbitration agreement entered into by the parties stated that “[a]ny and all Claims will be resolved by binding arbitration.” There was no apparent exception for fraud or contract claims, and plaintiff did not argue that any exception existed.

Van Den Heuvel v. Expedia Travel, 2017 WL 5133270 (E.D. Cal., November 6, 2017

November 6, 2017 Anonymity, Privacy

Puzzling privacy analysis in decision to unmask anonymous accused copyright infringers

Plaintiff porn company sued an unknown bittorrent user (identified as John Doe) alleging that defendant had downloaded and distributed more than 20 of plaintiff’s films. Plaintiff asked the court for leave to serve a subpoena on Optimum Online – the ISP associated with defendant’s IP address – prior to the Rule 26(f) conference. (As we have recently discussed, leave of court is required to start discovery before the Rule 26(f) conference, but a plaintiff cannot have that conference unless it knows who the defendant is.) Plaintiff already knew defendant’s IP address. It needed to serve the subpoena on the ISP to learn defendant’s real name and physical address so it could serve him with the complaint.

The court went through a well-established test to determine that good cause existed for allowing the expedited discovery. Drawing heavily on the case of Sony Music Entm’t, Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004), the court evaluated:

(1) the concreteness of the plaintiff’s showing of a prima facie claim of copyright infringement,

(2) the specificity of the discovery request,

(3) the absence of alternative means to obtain the subpoenaed information,

(4) the need for the subpoenaed information to advance the claim, and

(5) the objecting party’s expectation of privacy.

The court’s conclusions were not surprising on any of these elements. But it’s discussion under the fifth point, namely, the defendant’s expectation of privacy, was puzzling, and the court may have missed an important point.

It looked to the recent case involving Dred Pirate Roberts and Silk Road, namely, United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017). Leaning on the Ulbricht case, the court concluded that defendant had no reasonable expectation of privacy in the sought-after information (name and physical address) because there is no expectation of privacy in “subscriber information provided to an internet provider,” such as an IP address, and such information has been “voluntarily conveyed to third parties.”

While the court does not misquote the Ulbricht case, one is left to wonder why it would use that case to support discovery of the unknown subscriber’s name and physical address. At issue in Ulbricht was whether the government violated Dred Pirate Roberts’s Fourth Amendment rights when it obtained the IP address he was using. In this case, however, the plaintiff already knew the IP address from its forensic investigations. The sought-after information here was the name and physical address, not the IP address he used.

So looking to Ulbricht to say that the Doe defendant had no expectation of privacy in his IP address does nothing to shed information on the kind of expectation of privacy, if any, he should have had on his real name and physical address.

The court’s decision ultimately is not incorrect, but it did not need to consult with Ulbricht. As in the Sony Music case from which it drew the 5-part analysis, and in many other similar expedited discovery cases, the court could have simply found there was no reasonable expectation of privacy in the sought-after information, because the ISP’s terms of service put the subscriber on notice that it will turn over the information to third parties in certain circumstances like the ones arising in this case.

Strike 3 Holdings, LLC v. Doe, 2017 WL 5001474 (D.Conn., November 1, 2017)