Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

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Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

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Does a search engine operator have to delist websites hosting, without authorization, your trade secret materials or other intellectual property? The answer may depend on where you sue—just ask Google. The U.S. District Court for the Northern District of California <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=http://jolt.law.harvard.edu/digest/google-v-equustek-united-states-federal-court-declares-canadian-court-order-unenforceable&httpsredir=1&article=2589&context=historical" target="_blank" rel="noopener">recently handed the company a victory</a> over plaintiff Equustek Solutions Inc. in what has turned into an international battle where physical borders can have very real consequences on the Internet.The dispute began when a rival company, Datalink, allegedly misappropriated Equustek’s trade secrets in developing competing products. Equustek also alleged that Datalink misled customers who thought they were buying Equustek products. In 2012, Equustek obtained numerous court orders in Canada against Datalink. Datalink refused to comply, and Canadian court issued an arrest warrant for the primary defendant, who has yet to be apprehended.In September 2012, Equustek asked Google to delist search results for Datalink; Google declined this request. Equustek then sought a court order against Google in Canada and prevailed, resulting in Google removing 300 Datalink websites from search results generated by the Canadian version of its site, located at <a href="http://www.google.ca" target="_blank" rel="noopener">www.google.ca</a>. Google, however, did not take similar steps with respect to U.S. and other non-Canadian versions of its site, so the Datalink websites continued to appear in search results conducted by users outside of Canada.Equustek returned to the Canadian court, this time to seek an order compelling Google to remove the Datalink-related search results globally so that Datalink results would not appear for any Google users, regardless of their location. Equustek once again prevailed, and Google appealed to the Court of Appeal for British Columbia. That court, and later the Supreme Court of Canada, affirmed the trial court’s order.Google then brought the battle to the United States; in July 2017, it commenced an action in the U.S. District Court for the Northern District of California seeking a declaratory judgment that the Canadian court order cannot be enforced in the United States and an injunction against the enforcement of such order. (Equustek did not submit an opposition brief.)In support of its preliminary injunction motion, Google’s primary arguments were that the Canadian order (1) ignores the Communication Decency Act’s immunity for interactive service providers (2) directly conflicts with the First Amendment and (3) violates principles of international comity.In evaluating Google’s motion, a significant portion of the court’s analysis addressed the likelihood of Google’s success on the merits. The court focused on <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">Section 230 of the Communications Decency Act</a>, which states 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.” Citing the Ninth Circuit’s <a href="http://caselaw.findlaw.com/us-9th-circuit/1493375.html" target="_blank" rel="noopener">en banc decision</a> in the Roommates.com case, the court noted that Section 230 “immunizes providers of interactive computer services against liability arising from content created by third parties.”The court found that Google met all three requirements to qualify for Section 230 immunity. First, the court noted that there is no question as to whether Google is a “provider” or an “interactive computer service,” citing previous cases that had so held and noting that the term “interactive computer service” can mean any information service, system or access software provider that allows multiple users to access a computer server.Second, the court noted that the way that Google’s web caching and search result aggregation process works makes it such that Datalink—and not Google—is the entity “providing” the information in question. The court characterized Google’s role as that of a passive intermediary providing access to the material in question.Finally, the court found that enforcement of the Canadian order would hold Google liable as “publisher or speaker” of the infringing material on Datalink’s websites. The court quoted the Supreme Court of Canada’s justification for the order, which characterized Google as “the determinative player in allowing the harm to occur,” and observed that the Ninth Circuit considers any claim requiring an intermediary to remove third-party content as treating that intermediary as a publisher.Turning to the remaining three factors for granting a preliminary injunction—irreparable harm, balance of the equities and the public interest—the court sided with Google on all three factors.It found that depriving Google of Section 230 protection harmed Google, and that the balance of equities favors Google because the injunction would deprive it of the benefits of U.S. federal law.It also noted that granting Google’s requested injunction would serve the public interest in that it would be in keeping with Congress’s finding that tort liability for websites’ hosting third-party content would severely limit free speech on the Internet. The court pointed out that Section 230 was specifically enacted in service of this proposition and underscored the fact that a strong policy in favor of fostering free speech online would be hampered by holding Google responsible for the third-party material it displays in its search results.According to the court, “The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites . . . [and] undermines the policy goals of Section 230 and threatens free speech on the global internet.”The court’s decision highlights the power of the Section 230 safe harbor and its critical role in facilitating the free flow of information online. However, if we step back to look at the larger issue, the Google-Equustek dispute—having generated conflicting court decisions in Canada and the United States—suggests that we may be moving toward an increasingly patchwork Internet rather than the borderless, monolithic information superhighway of the past few decades.In the near future, what you see online may depend on where you live.Further, as the Internet becomes more Balkanized, we may see situations where the strictest, most burdensome portion of the patchwork seeks to force all of the others to follow in its stead. Case in point: Europe’s emerging “right to be forgotten.” At first, in response to EU consumers seeking to exercise this right, Google had offered to scrub relevant search results from EU-versions of its website, but, following continued pressure from the EU, it agreed to filter the results shown to EU residents regardless of which version of the Google site they searched (so that, for example, Google.com would show the same scrubbed results to an EU resident as Google.fr). <a href="https://www.theguardian.com/technology/2016/may/19/google-right-to-be-forgotten-fight-france-highest-court" target="_blank" rel="noopener">According to France</a>, however, this arrangement is still not enough, and Google should scrub the results globally—even for users who reside in the many countries that do not recognize the right to be forgotten.What comes of this fight has yet to be known, but what is unmistakable is the slow and steady shift to an Internet that differs across borders. As this shift continues, U.S. laws aimed at facilitating online speech—such as Section 230 and the DMCA’s copyright safe harbors—are increasingly likely to butt heads with other countries’ laws seeking to regulate and even censor online speech.*          *          *For other Socially Aware blog posts regarding the CDA Section 230 safe harbor, please see the following: <a href="https://www.sociallyawareblog.com/2018/03/15/lawsuit-against-online-dating-app-grindr-dismissed-under-section-230-of-the-communications-decency-act/" target="_blank" rel="noopener">Lawsuit Against Online Dating App Grindr Dismissed Under Section 230 of the Communications Decency Act</a>; 2018: Predictions From Socially Aware’s Editors and Contributors; Snapchat Clocks Section 230 Win in Speed Filter Case; <a href="https://www.sociallyawareblog.com/2016/12/15/the-decline-and-fall-of-section-230/" target="_blank" rel="noopener">The Decline and Fall of Section 230?</a>; <a href="https://www.sociallyawareblog.com/2016/12/05/manchanda-v-google/" target="_blank" rel="noopener">In a Rough Year for CDA Section 230, Manchanda v. Google Provides Comfort to Website Operators</a>; and <a href="https://www.sociallyawareblog.com/2016/11/22/yelp-section-230-still-has-teeth/" target="_blank" rel="noopener">Yelp Case Shows CDA §230 Still Has Teeth</a>.

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The Coming Border Wars: U.S. Court Decision Refusing to Enforce Canadian Court Order Highlights the Growing Balkanization of the Internet

The Coming Border Wars: U.S. Court Decision Refusing to Enforce Canadian Court Order Highlights the Growing Balkanization of the Internet

Does a search engine operator have to delist websites hosting, without authorization, your trade secret materials or other intellectual property? The answer may

<div class="container-fluid main"><div class="row body"><div class="body-container "><div class="col-md-8 col-md-push-2 col-sm-12 col-xs-12"><div>Geo-blocking is the practice of preventing Internet users in one jurisdiction from accessing services elsewhere based on the user’s geographic location. The European Commission wants to eliminate geo-blocking within the EU—and has taken a significant step forward in its plans to do so by clearing key votes in the EU legislative process.By the end of 2018, we expect that online retailers will need to ensure that they phase out the use of geo-blocking across the EU except in limited circumstances.These changes are part of a wider programme of reform affecting all businesses operating in the Technology, Media, and Telecoms sectors in Europe.BackgroundThe European Commission launched its Digital Single Market (“DSM”) strategy in May 2015. We have written a number of articles following the DSM’s progress: at its <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blta8a9799d75acde0d/627317c60cffdf1eb1369e0d/150514eudigitalsinglemarket.pdf" target="_blank" rel="noopener">inception</a>, <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt7ca6fae4bd1791f3/6273195723c6cf2a1c3af651/160808digitalsinglemarketstrategy.pdf" target="_blank" rel="noopener">one year in</a>, and in 2017 following a mid-term review.The DSM strategy is broken down into three “pillars” and 16 “Key Actions”. Key Action 4 aims to end unjustified geo-blocking, which the Commission identifies as an obstacle to harmonized cross-border e-commerce, a reason for significant consumer dissatisfaction by limiting opportunities and choice, and a cause of fragmentation of the EU’s digital market.The Commission undertook a consultation which showed that geo-blocking is increasingly common across the EU. Replies from more than 1,400 retailers and digital content providers from all 28 Member States showed that 38% of the responding retailers that sold consumer goods and 68% of digital content providers engage in active geo‑blocking directed at consumers located in other Member States. 63% of websites do not let shoppers buy goods or services from another EU country. Geo-blocking is especially prevalent for online sales of electrical household appliances and online reservations for leisure activities such as sports tickets.In its 2018 Work Programme, a document that sets out what the Commission plans to achieve in terms of specific implementation of its key initiatives each year, the Commission mentioned specifically the pressing need to see through legislative proposals on unjustified geo-blocking.Regulation on Addressing Geo-BlockingThe Commission’s proposed Regulation on addressing geo-blocking (the “Geo-blocking Regulation”) was voted through both the European Parliament and Council in February 2018 – and thus should come into force by the end of 2018. You can read our previous alert on the Geo-blocking Regulation <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt8b3bbd02dcf543be/62731957a1a1dd2aa9f6cb00/160808brexitgeoblocking.pdf">here</a>.Currently, online customers are often blocked from accessing certain sites or rerouted to a page specifically aimed at their location, where they may be offered different goods or prices. The Geo-blocking Regulation will prohibit such blocking or redirection (without consent), essentially compelling traders who operate online to offer their goods or services to online customers in all Member States, and on the same terms as local customers. This will apply to:<ul><li>the sale of physical goods (however, a trader does not have to deliver the goods cross-border, so the consumer may have to travel to collect the goods from the trader’s Member State, or a Member State to which a trader already offers delivery in its general conditions);</li><li>services that are supplied on the premises of the trader or in a physical location where the trader operates, e.g., hotel stays, sports events, car rentals, or music festivals; and</li><li>electronically supplied services that are not protected by copyright, e.g., cloud services, firewalls, data warehousing, and website hosting.</li></ul>Copyrighted content, audiovisual services and transport services are exempt from the Geo-blocking Regulation, although these exemptions will be assessed two years after the Regulation comes into force.Once the Geo-blocking Regulation becomes law in the EU, online traders will be required to treat online shoppers from another EU country in the same way as local buyers. This means granting equal access to prices or sales conditions when they buy goods or services not protected by copyright. The new rules will also not allow traders to treat shoppers differently based on the place of issue of a credit or debit card (although traders remain free to accept whatever means of payment they choose).Following its safe passage through EU Parliament and Council, the Geo-blocking Regulation will now need to be published in the Official Journal of the EU before the end of March 2018. It will enter into force on the 20th day following its publication in the Official Journal, and will apply nine months after this publication.Digital Single Market<ul><li>Overview and Summaries: DSM at its <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blta8a9799d75acde0d/627317c60cffdf1eb1369e0d/150514eudigitalsinglemarket.pdf" target="_blank" rel="noopener">inception in 2015</a>, <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt7ca6fae4bd1791f3/6273195723c6cf2a1c3af651/160808digitalsinglemarketstrategy.pdf">one year in (2016)</a>, and following a mid-term review in 2017</li><li>2018 EU Work Programme</li><li>Key Action 1 – regulating cross-border e-commerce</li><li>Key Action 2 – enforcing consumer protection rules</li><li>Key Action 3 – Cross-border Parcel Delivery</li></ul></div> (Rayhaan Vankalwala, a Trainee Solicitor in our London office, contributed to the writing of this alert.)<div>*          *          *For more on geo-blocking in the European Union, see the following Socially Aware blog post: <a href="https://www.sociallyawareblog.com/2016/11/02/european-commission-publishes-draft-regulation-prohibiting-geo-blocking-by-online-traders-and-content-publishers/" target="_blank" rel="noopener">European Commission Publishes Draft Regulation Prohibiting Geo-Blocking by Online Traders and Content Publishers</a>. For more on the EU’s regulation of e-commerce and it’s digital single market strategy, please see <a href="https://www.sociallyawareblog.com/2018/01/23/proceed-to-check-out-the-impact-of-2018-european-e-commerce-reforms/" target="_blank" rel="noopener">Proceed To Check Out? The Impact Of 2018 European E-Commerce Reforms</a>; and <a href="https://www.sociallyawareblog.com/2016/03/30/digital-single-market-strategy-update-europe-proposes-further-harmonisation-of-consumer-protection-laws/" target="_blank" rel="noopener">Digital Single Market Strategy Update: Europe Proposes Further Harmonisation of Consumer Protection Laws</a>.</div></div></div></div></div>

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