February 2021 – Attorney Evan Brown

February 14, 2021 Section 230

HuffPost protected by Section 230 in Carter Page defamation suit

Section 230

Carter Page sued the publisher of the HuffPost over some 2016 articles about the Russia collusion matter that Page claimed were defamatory. These articles were written by “contributors” to the HuffPost, who, according to the court, “control their own work and post freely to the site”.

The court threw out the defamation claims concerning these articles, in part because it found that HuffPost was immune from suit thanks to Section 230. The court determined that HuffPost was not the “information content provider” since the content was written by these so-called contributors.

Page v. Oath Inc., 2021 WL 528472 (Superior Ct. Del., February 11, 2021)

Evan Brown is a technology and intellectual property attorney.

February 11, 2021 Contracts

What’s going on legally with Jeep pulling the Bruce Springsteen ad?

Morals clauses in talent agreements can fuel cancel culture.

Jeep featured Bruce Springsteen in an ad that aired during Sunday’s Super Bowl. Since then, news broke that Springsteen had been arrested almost three months prior for drunk driving. So Jeep pulled further use of the ad.

This scenario shines light on a key provision in the contract that celebrities and brands typically sign. An agreement of this sort will contain a “morals clause”. Here is the language of a typical clause like this (this is just an example of such a clause – not the one in the Jeep/Springsteen agreement):

Company will have the right to terminate this Agreement for cause, which includes, without limitation, . . . commission of any act (in the past or present) which degrades Talent, Company or the Products or brings Talent, or Company or the Products into public disrepute, contempt, scandal or ridicule. Upon termination for cause, Company shall have no further obligation to Talent (including, but not limited to, any payment obligations).

Companies want these provisions for obvious reasons – if the face of the company comes under public scrutiny for any bad reason, the company needs a method to part ways. Talent with more negotiating power may be able to narrow the scope of the circumstances in which the company can terminate the agreement. For example, it could require actual conviction of a serious crime.

One problem, however, particularly for talent, is how broadly morals clauses can be written. The example clause above is broad and vague. And note how the language in this example pulls in past conduct as well (old tweets, anyone?). Given the polarized character of modern public discourse, just about everything done in public is subject to contempt, scandal or ridicule by at someone. These clauses provide the means for the commercial side of cancel culture to flourish.

Evan Brown is an intellectual property and technology attorney in Chicago.

February 11, 2021 Section 230

Section 230 protected Google in illegal gambling lawsuit over loot boxes

Section 230

Plaintiffs sued Google claiming that loot boxes in games available through the Google Play store were illegal “slot machines or devices”. (Players who buy loot boxes get a randomized chance at receiving an item designed to enhance game play, such as a better weapon, faster car, or skin.) Plaintiffs characterized these loot boxes as a “gamble” because the player does not know what the loot box actually contains until it is opened. Defendant Google moved to dismiss the lawsuit on Section 230 grounds. The court granted the motion.

As relevant here, Section 230(c)(1) provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 203(e)(3).

The court held that Google was immune under Section 230 because (a) it is an interactive computer service provider, (b) plaintiffs’ claims over the loot boxes sought to treat Google as the “publisher or speaker” of the games containing the allegedly illegal loot boxes, and (c) the games constituted information provided by third parties.

Of particular interest was the court’s treatment of plaintiff’s argument that Section 230 only relates to “speech” and that Google’s provision of software did not fit into that category. Rejecting this argument, the court cited to the case of Evans v. Hewlett-Packard Co., 2013 WL 4426359(N.D. Cal. Aug. 15, 2013) in which the court used Section 230 to knock out Chubby Checker’s trademark and unfair competition claims against HP over a game HP made available.

Coffee v. Google, LLC, 2021 WL 493387 (N.D. Cal., February 10, 2021)

Evan Brown is a technology and intellectual property attorney in Chicago.

February 8, 2021 Contracts

Court finds clickwrap independent contractor agreement enforceable

Plaintiffs were companies that sued some of their former independent contractors who worked for the companies in a “direct sales community”. The court needed to determine whether defendants had entered into a valid contract with plaintiffs. Applying Texas law, the court observed that other courts have recognized the validity of electronic contracts. It found that the agreements at issue were valid clickwrap agreements and that plaintiffs had – through screenshots they submitted – at minimum, made the requisite showing that contracts existed between plaintiffs and each defendant.

Elepreneurs Holdings, LLC et al. v. Benson et at., 2021 WL 410001 (E.D. Tex., February 5, 2021)

This post originally appeared on evan.law.

Chicago area retailers sued over iconic David Bowie photo

Brian Duffy was an English photographer. He died in 2010 but the Brian Duffy Archive owns and enforces the copyright in his works. Defendants are small retailers around Chicago who developed and sold gift items alleged to appropriate one of Duffy’s well-known David Bowie photos. Who among us hasn’t wished for a Rebel Rebel Pouch or a Ziggy Stardust Koozie? Apparently not the Brian Duffy Archive. It has sued for copyright infringement.

Plaintiff first noticed allegedly infringing works on Instagram and then chased down the defendant retailers who do business both online and through brick and mortar stores. Plaintiff filed the case in January and things are just getting underway. Here are some of the interesting issues that could arise in the litigation:

Registration timing issues – the photo was taken in 1973 but not registered in the U.S. until 2017.
Whether the photo was ever published before 1989 without a copyright notice. That could have placed it in the public domain.
Fair use – Are these uses transformative? Have they affected the market for the original work?

The Duffy Archive is certainly trying to keep defendants under pressure. Plaintiff seeks injunctive relief, maximum damages, costs and attorneys fees and anything else the court will give it.

Duffy Archive Limited v. The Found, Inc. et al., No. 21-cv-00181 (N.D.Ill., filed January 12, 2021)

About the author: Evan Brown is a technology and intellectual property attorney in Chicago. This post originally appeared on evan.law.