x – Attorney Evan Brown

September 5, 2024 First Amendment, Social Media

X gets Ninth Circuit win in case over California’s content moderation law

X sued the California attorney general, challenging Assembly Bill 587 (AB 587) – a law that required large social media companies to submit semiannual reports detailing their terms of service and content moderation policies, as well as their practices for handling specific types of content such as hate speech and misinformation. X claimed that this law violated the First Amendment, was preempted by the federal Communications Decency Act, and infringed upon the Dormant Commerce Clause.

Plaintiff sought a preliminary injunction to prevent the government from enforcing AB 587 while the case was pending. Specifically, it argued that being forced to comply with the reporting requirements would compel speech in violation of the First Amendment. Plaintiff asserted that AB 587’s requirement to disclose how it defined and regulated certain categories of content compelled speech about contentious issues, infringing on its First Amendment rights.

The district court denied plaintiff’s motion for a preliminary injunction. It found that the reporting requirements were commercial in nature and that they survived under a lower level of scrutiny applied to commercial speech regulations. Plaintiff sought review with the Ninth Circuit.

On review, the Ninth Circuit reversed the district court’s denial and granted the preliminary injunction. The court found that the reporting requirements compelled non-commercial speech and were thus subject to strict scrutiny under the First Amendment—a much higher standard. Under strict scrutiny, a law is presumed unconstitutional unless the government can show it is narrowly tailored to serve a compelling state interest. The court reasoned that plaintiff was likely to succeed on its claim that AB 587 violated the First Amendment because the law was not narrowly tailored. Less restrictive alternatives could have achieved the government’s goal of promoting transparency in social media content moderation without compelling companies to disclose their opinions on sensitive and contentious categories of speech.

The appellate court held that plaintiff would likely suffer irreparable harm if the law was enforced, as the compelled speech would infringe upon the platform’s First Amendment rights. Furthermore, the court found that the balance of equities and public interest supported granting the preliminary injunction because preventing potential constitutional violations was deemed more important than the government’s interest in transparency. Therefore, the court reversed and remanded the case, instructing the district court to enter a preliminary injunction consistent with its opinion.

X Corp. v. Bonta, 2024 WL 4033063 (9th Cir. September 4, 2024)

March 12, 2024 Copyright, DMCA

X avoids much of music industry copyright lawsuit

Plaintiffs sued X for copyright infringement arising from X’s users uploading tweets that contained copyright-protected music. Plaintiffs accused X of “trying to generate the kind of revenue that one would expect as a lawful purveyor of music and other media, without incurring the cost of actually paying for the licenses.” For example, plaintiffs highlighted a feature within the X platform whereby one could seek out tweets that include audiovisual media. And they pointed out infringing content surrounded by “promoted” content on the platform that generated revenue for X. The parties disputed the extent to which X actively encouraged infringing conduct. Plaintiffs sent many DMCA takedown notices to X but complained that the company took too long to respond to those notices. And plaintiffs asserted that X did not have an appropriate procedure in place to terminate users engaged in repeated acts of copyright infringement.

The complaint alleged three counts – direct, contributory and vicarious infringement. X moved to dismiss the complaint for failure to state a claim. The court granted the motion for the most part, except as to certain practices concerning contributory liability, namely, being more lenient to verified users, failing to act quickly concerning DMCA takedown notices, and failing to take steps to in response to severe serial infringers.

No direct infringement liability

The court found that plaintiffs had not successfully alleged direct infringement liability because their claims did not align with the required notion of “transmission” as defined in the Copyright Act and interpreted in the Supreme Court case of American Broadcasting Companies, Inc. v. Aereo, Inc., 573 US 431 (2014). The court distinguished X’s actions from the defendant in the Aereo case by noting that X merely provided the platform for third-party transmissions, rather than actively participating in the transmission of copyrighted material. Therefore, the court concluded that X’s role was more akin to a passive carrier, similar to a telegraph system or telephone company, making its actions more suitable for consideration under theories of secondary liability rather than direct infringement.

Some possible contributory liability

The court found that certain portions of plaintiffs’ claims for contributory infringement liability survived because they plausibly alleged that X engaged in actions that could materially contribute to infringement on the X platform. These actions included failing to promptly respond to valid takedown notices, allowing users to pay for less stringent copyright policy enforcement, and not taking meaningful steps against severe serial infringers. Consequently, the court dismissed the broader claim of general liability across the X platform but allowed the plaintiffs to proceed with their claims related to these specific practices.

No vicarious liability

Finally, the court determined that plaintiffs had not successfully pled vicarious liability for copyright infringement because their allegations did not establish that X had the requisite level of control over the infringing activities on X. The court found that simply providing a service that users might exploit for infringement did not equate to the direct control or supervisory capacity typically required for vicarious liability, as seen in traditional employer-employee or principal-agent relationships. Consequently, the court rejected the application of vicarious liability in this context, emphasizing that contributory infringement, rather than vicarious liability, was the more appropriate legal framework for the plaintiffs’ claims.

Concord Music Group, Inc. v. X Corp., 2024 WL 945325 (M.D. Tenn. March 5, 2024)

See also:

January 1, 2024 First Amendment, Social Media

Required content moderation reporting does not violate X’s First Amendment rights

A federal court in California has upheld the constitutionality of the state’s Assembly Bill 587 (AB 587), which mandates social media companies to submit to the state attorney general semi-annual reports detailing their content moderation practices. This decision comes after X filed a lawsuit claiming the law violated the company’s First Amendment rights.

The underlying law

AB 587 requires social media companies to provide detailed accounts of their content moderation policies, particularly addressing issues like hate speech, extremism, disinformation, harassment, and foreign political interference. These “terms of service reports” are to be submitted to the state’s attorney general, aiming to increase transparency in how these platforms manage user content.

X’s challenge

X challenged this law, seeking to prevent its enforcement on the grounds that it was unconstitutional. The court, however, denied their motion for injunctive relief, finding that X failed to demonstrate a likelihood of success on the merits of its constitutional claims.

The court’s decision relied heavily on SCOTUS’s opinion in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). Under the Zauderer case, for governmentally compelled commercial disclosure to be constitutionally permissible, the information must be purely factual and uncontroversial, not unduly burdensome, and reasonably related to a substantial government interest.

The court’s constitutional analysis

In applying these criteria, the court found that AB 587’s requirements fit within these constitutional boundaries. The reports, while compulsory, do not constitute commercial speech in the traditional sense, as they are not advertisements and carry no direct economic benefit for the social media companies. Despite this, the court followed the rationale of other circuits that have assessed similar requirements for social media disclosures.

The court determined that the content of the reports mandated by AB 587 is purely factual, requiring companies to outline their existing content moderation policies related to specified areas. The statistical data, if provided, represents objective information about the company’s actions. The court also found that the disclosures are uncontroversial, noting that the mere association with contentious topics does not render the reports themselves controversial. We know how controversial and political the regulation of “disinformation” can be.

Addressing the burden of these requirements, the court recognized that while the reporting may be demanding, it is not unjustifiably so under First Amendment considerations. X argued that the law would necessitate significant resources to monitor and report the required metrics. But the court noted that AB 587 does not obligate companies to adopt any specific content categories, nor does it impose burdens on speech itself, a crucial aspect under Zauderer’s analysis.

What this means

The court confirmed that AB 587’s reporting requirements are reasonably related to a substantial government interest. This interest lies in ensuring transparency in social media content moderation practices, enabling consumers to make informed choices about their engagement with news and information on these platforms.

The court’s decision is a significant step in addressing the complexities of regulating social media platforms, balancing the need for transparency with the constitutional rights of these digital entities. As the landscape of digital communication continues to evolve, this case may be a marker for how governments might approach the regulation of social media companies, particularly in the realm of content moderation.

X Corp. v. Bonta, 2023 WL 8948286 (E.D. Cal., December 28, 2023)

July 24, 2023 Trademarks

When X makes it an ex-brand: Can a company retain rights in an old trademark after rebranding?

This past weekend Elon Musk announced plans to rebrand Twitter as X. This strategic shift from one of the most recognized names and logos in the social media realm is stirring discussion throughout the industry. This notable transformation raises a broader question: Can a company still have rights in its trademarks after rebranding? What might come of the famous TWITTER mark and the friendly blue bird logo?

Continued Use is Key

In the United States, trademark rights primarily arise from the actual use of the mark in commerce (and not just from registration of the mark). The Commerce Clause of the United States Constitution grants Congress the power to regulate commerce among the states. Exercising this constitutional authority, Congress enacted the Lanham Act, which serves as the foundation for modern trademark law in the United States. By linking the Lanham Act’s protections to the “use in commerce” of a trademark, the legislation reinforces the principle that active commercial use, rather than mere registration, is a key determinant of rights in that trademark. So, as long as a company has genuinely used its trademark in commerce (assuming no other company has rights that arose prior in time), the company retains rights to that mark.

Though a company may transition to a new brand identity, it can maintain rights to its former trademark by continuing its use in some form or another. This might involve selling a limited line of products under the old brand, using the old brand in specific regions, or licensing the old trademark to other entities. Such actions show the company’s intent to maintain its claim and rights to the mark—such rights being tied strongly to the actual use of the mark in commerce. No doubt continued use of the old marks after a rebrand can be problematic, as it may paint an unclear picture as to how the company is developing its identity. For example, as of the time of this blog post, X has placed the new X logo, but still has the words “Search Twitter” in the search bar. And there is also the open question of whether we will in the future call content posted to the platform “tweets”.

Avoiding Abandonment

If a company does not actively use its trademark and demonstrates no intention to use it in the future, it runs the risk of abandonment. Once a trademark is deemed abandoned, the original owner loses exclusive rights to it. This is obviously problematic for a brand owner, because a third party could then enter the scene, adopt use of the abandoned mark, and thereby pick up on the goodwill the former brand owner developed over the years.

What Will Twitter Do?

It is difficult to imagine that X will allow the TWITTER mark to fall into the history books of abandoned marks. The mark has immense value through its long use and recognition—indeed the platform has been the prime mover in its space since its founding in 2006. Even if the company commits to the X rebranding, we probably have not seen the end of TWITTER and the blue bird as trademarks. There will likely be some use, even if different than what we have seen over the past 17 years, to keep certain trademark rights alive.

From the archives:

Is Twitter a big fat copyright infringing turkey?