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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Lawrence W. Gallick

All Your Sale Are Belong to Us - Mitigating IP and Payments Risk in In-Game Economies (Part II – User-Generated Content and In-Game Payment Models)

A New California Digital Content Law Establishes New Requirements for Advertisers and Vendors

California’s Assembly Bill 587 Loses Key Provisions After Legal Challenge from X

Social Links: TikTok Tussles, Teen Privacy Push, and the Thumbs-Up That Sealed the Deal

Utah’s New App Store Age Verification Law: What S.B. 142 Means for Kids, Parents, and Tech

Recent <a href="https://www.cnn.com/2024/01/31/tech/big-tech-executives-senate-hearing-teens/index.html" target="_blank">Senate hearings</a> on social media safety have spotlighted the urgent need to protect children online, a concern that’s increasingly challenging the legal frameworks governing online platforms. Against this backdrop, the immunity that online platforms enjoy under <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" dir="ltr">Section 230 of the Communications Decency Act</a> remains a contentious issue.Here at Socially Aware, we have been tracking <a href="/topics/the-decline-and-fall-of-section-230" target="_self">the backlash against Section 230</a> for many years, and the pressure has only intensified recently. But to paraphrase Mark Twain, rumors of Section 230’s death have (so far) been greatly exaggerated, and the statute still provides platforms with robust protection in many cases, as illustrated by a <a href="https://caselaw.findlaw.com/court/us-dis-crt-cd-cal/115681333.html" target="_blank">recent opinion</a> out of the Central District of California dismissing claims against the dating app Grindr. This is <a href="/topics/appeals-court-upholds-section-230-protections-in-case-against-grindr" target="_self">not the first time</a> that Grindr has benefited from Section 230 protection.<a href="https://www.grindr.com/" target="_blank" dir="ltr">Grindr</a> is a popular LGBTQ+ dating application. The app requires users to provide an email address and verify that they are over 18, permitting them to create a profile including their geolocation and other information. The app uses the information that users provide to match them with other users who are “geographically proximate.”The case, John Doe v. Grindr, arose when the plaintiff, a minor, was matched with four adult men, with whom he chatted and whom met in person, ultimately leading to his sexual assault and rape in each instance. Doe sued Grindr for child sex trafficking and distributing a defective product, asserting claims of strict product liability, negligence, negligent misrepresentation, and violation of the <a href="https://www.congress.gov/bill/117th-congress/senate-bill/3949" target="_blank" dir="ltr">Trafficking Victims Protection Reauthorization Act</a> (TVPRA). He alleged that Grindr’s app is an inherently dangerous software product, that Grindr knows that minors use the app, and that sexual predators use it to target minors.Grindr moved to dismiss Doe’s claims, arguing that they were all barred by Section 230. The court applied the Ninth Circuit’s standard three-prong test, as originally articulated in <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/05-36189/05-36189-2011-02-25.html" target="_blank" dir="ltr">Barnes v. Yahoo!</a>, to determine Section 230’s applicability. This approach asks three questions: (1) is the defendant a provider or user of an “interactive computer service,” (2) does the plaintiff’s claim seek to treat the defendant as a “publisher or speaker,” and (3) was the content at issue provided by “another information content provider”? If these conditions are met, then the defendant is entitled to Section 230 immunity (assuming no other exception applies).The court easily determined that Grindr is an interactive computer service for purposes of the first prong of the test. The more interesting questions involved the second and third prongs, with Doe arguing that his claims did not treat Grindr as a publisher or speaker of content provided by a third party.Doe argued that his claims arose from Grindr’s design, development, and sale of a defective product rather than from Grindr’s activities as a publisher or speaker, relying on the Ninth Circuit case <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/04/20-55295.pdf" target="_blank" dir="ltr">Lemmon v. Snap</a> (which <a href="https://www.sociallyawareblog.com/topics/ninth-circuits-snap-decision-limits-section-230-immunity" target="_blank">we wrote about previously</a>). In Lemmon, the Ninth Circuit held that Section 230 did not apply to negligent design claims based on Snapchat’s “Speed Filter” feature, because those claims did not treat Snap as a publisher or speaker of information provided by another information content provider, but rather targeted Snap’s allegedly “unreasonable and negligent” design decisions. Similarly, Doe argued, Grindr’s app is defective in that it matches children with adults for in-person sexual encounters and facilitates the exchange of sexually explicit material.The court, however, distinguished Lemmon, noting that the allegedly defective match function in Grindr’s product relies on and publishes a user’s profile and geolocation data, which is third-party content generated by the user. To support this conclusion, the court cited <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/18-15175/18-15175-2019-08-20.html" target="_blank">Dyroff v. Ultimate Software</a> (finding that an app’s features, functions, and algorithms that analyze user content and recommend connections “are tools meant to facilitate the communication and content of others”), <a href="https://scholar.google.com/scholar_case?case=18029531304035617061&hl=en&as_sdt=6&as_vis=1&oi=scholarr" target="_blank">Herrick v. Grindr</a> (noting that Grindr’s geolocation feature is based on a user’s mobile device’s longitude and latitude), and <a href="https://law.justia.com/cases/federal/appellate-courts/ca5/07-50345/07-50345-cv0.wpd-2011-02-25.html" target="_blank">Doe v. Myspace</a> (rejecting argument that negligence claims were predicated on the lack of safety features to protect minors from communicating with predators). According to the court, Grindr received the user content from Doe and the adult men and published it via the match feature’s notification. If Grindr had not published that user-provided content, Doe and the adult men would never have met and the sexual assaults never occurred. [Citation omitted.] Thus, Doe’s claims require the Court to treat Grindr as a publisher of user content.On the third prong of the test—i.e., whether the relevant published material came from a third-party content provider—Doe argued that Grindr materially contributed to Doe’s harm by matching closely located children and adults on its app and that, therefore, his claim was not based only on third-party content. The court was not convinced, finding that the matching feature was based entirely on the geolocation information and user profiles provided by the users, which is publication of information created by third parties. According to the court, “Grindr is not an ‘information content provider because it did not create or develop information, but rather published information created or developed by third parties.’” [Internal citations omitted.]Regarding the TVPRA claim, Doe argued that Section 230 did not immunize Grindr because the <a href="https://www.congress.gov/bill/115th-congress/house-bill/1865" target="_blank">Allow States and Victims to Fight Online Sex Trafficking Act of 2017</a> (FOSTA) exempts child sex trafficking claims from the statutory safe harbor. Citing <a href="https://caselaw.findlaw.com/court/us-9th-circuit/1972265.html" target="_blank">Does v. Reddit</a>, however, the court noted that the FOSTA exception only applies when the platform itself contributed to the sex trafficking by knowingly benefiting or facilitating the illegal activities (we wrote about Does v. Reddit <a href="/topics/ninth-circuit-interprets-fosta-restriction-on-section-230-narrowly" target="_self" dir="ltr">here</a>).Here, because Doe told Grindr he was over 18, Grindr did not know that Doe was a minor, so Grindr was not directly liable under the TVPRA. Moreover, the court held, Doe’s allegations that Grindr knowingly benefitted (e.g., by selling ads) from sexual predators using the app did not mean that Grindr knowingly benefited from participating in child sex trafficking. According to the court, Grindr’s alleged generalized knowledge that sexual predators used the app was not sufficient to implicate Grindr in a “causal relationship between its own affirmative conduct furthering the sex-trafficking venture and its receipt of resulting ad revenues.” [Internal citations omitted.] Therefore, the FOSTA exception to Section 230 immunity did not apply.This case underscores the robust protection that Section 230 continues to provide to online platforms, even as societal concerns regarding social media’s impact on children reach fever pitch. As debates around Section 230 rage, Doe v. Grindr illustrates that the safe harbor provided by the statute remains potent, highlighting the complex interplay between ensuring online safety and maintaining the internet’s open, interactive nature.

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Lindsay is an associate in the Technology Transactions Group of Morrison Foerster.

Lindsay B. Harris

Lindsay Harris

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 Rubin

Recent Senate hearings on social media safety have spotlighted the urgent need to protect children online, a concern that’s increasingly challenging the legal frameworks governing online platforms. Against this backdrop, the immunity that online platforms enjoy under Section 230 of the Communications Decency Act remains a contentious issue.

Central District of California Upholds Grindr’s Immunity Under Section 230 Amidst Growing Concerns over Social Media Safety for Children

Here at Socially Aware, we <a href="/topics/social-links-social-media-account-ownership-once-again-in-the-spotlight" target="_self">have been discussing</a> issues around ownership of social media accounts since the beginning of social media. Just last July, we reported on how a bankruptcy court in Florida forced the founder and former CEO of Bang Energy to delete disparaging comments from his Instagram account and ultimately <a href="https://caselaw.findlaw.com/court/us-ban-crt-s-d-flo-for-lau-div/2289548.html" target="_blank">ruled</a> that the company owned the Instagram, TikTok, and X (formerly Twitter) accounts at issue. Prior to the Bang case, a number of other cases addressed these issues, with varying results, which is unsurprising given the varying facts around creation and use of social media accounts by businesses and business professionals. See some of our other <a href="/topics/which-side-are-you-on-employers-and-employees-battle-over-ownership-of-social-media-accounts" target="_self">coverage of social media ownership litigation</a>.Today, we are looking at a recent Second Circuit case, <a href="https://law.justia.com/cases/federal/appellate-courts/ca2/21-2535/21-2535-2024-01-17.html" target="_blank" dir="ltr">JLM Couture, Inc. v. Hayley Paige Gutman</a>, where a fashion designer and her former employer wrestled over ownership of Instagram and Pinterest accounts that the fashion designer created and used for both business and personal brand purposes.BackgroundIn July 2011, JLM Couture, Inc. engaged Hayley Paige Gutman to design a line of bridal wear. The employment contract included several restrictions on Gutman, including that: (a) Gutman would not use her name in commerce once JLM registered it as a trademark; (b) certain broad categories of Gutman’s work would be JLM’s property as works for hire; and (c) she would abide by certain noncompete, nonsolicit, and nondisclosure obligations during the term of the contract and for five years thereafter. JLM and Gutman agreed to extend the contract through August 1, 2022 but, following further negotiations in 2019, failed to agree on any further extensions. Following the breakdown in negotiations, Gutman changed the passwords to her Instagram and Pinterest accounts, refused to give JLM access to the accounts, and notified JLM that she would no longer post JLM-related content to the accounts. JLM then sued Gutman for, among other things, breach of contract, conversion, and trespass to chattels based on Gutman’s taking control of the accounts.Gutman personally created both accounts in 2011 and 2012, using her own name as a handle and with her personal contact information. JLM did not require Gutman to open the accounts, although JLM argued that she had created them within the scope of her employment. The district court agreed that Gutman created the accounts to showcase JLM’s products, which she featured in her earliest posts, interspersed with posts of a more personal nature. Over time, the accounts became more JLM-focused, featuring product pictures and JLM event information. In addition, the accounts’ messaging features were used to respond to sales inquiries. Notably, other JLM employees had access to manage the accounts.Prior to this appeal, the case had already gone through a series of decisions and appeals, resulting in a preliminary injunction that, among other things, gave JLM control of the accounts and enjoined Gutman from competing with JLM until the end of the contract term in 2022. When Gutman posted teasers to the Instagram account about her new bridal brand, the district court held her in contempt, ordered her not to post any “similar content,” and assessed a $5,000/day penalty while she remained out of compliance. In this appeal, the Second Circuit reviewed that contempt order.Second Circuit DecisionGutman argued, and the Second Circuit agreed, that the district court was in error to give JLM control of the accounts. The district court had used a six-factor test to determine the proper owner of a social media account, as follows:<ol><li dir="ltr">whether the account handle reflects the business or entity name;</li><li dir="ltr">how the account describes itself;</li><li dir="ltr">whether the account was promoted on the entity’s 	advertisements or publicity materials;</li><li dir="ltr">whether the account includes links to other internet platforms of the entity;</li><li dir="ltr">for what purpose the account was used, including whether it was tied to promotional or mission-oriented activities of the entity; and</li><li dir="ltr">whether employees or members of the entity had access to the account and participated in its management.</li></ol>Based on this analysis, the district court determined that JLM had a “clear likelihood” of success on demonstrating that it owned the accounts or, even if Gutman had title to the accounts, that JLM had a “vastly superior” right to control the accounts.The Second Circuit concluded that the district court’s use of the six-factor test was an error. Despite social media being a relatively new technology in the eyes of the law, the Second Circuit determined that there was no reason here to deviate from traditional principles of property law. The Second Circuit noted that the district court’s failure to start its analysis by looking at who owned the accounts at their creation was one problematic result of this error. The court went all the way back to a case that most law students read in their first-year property law class, <a href="https://history.nycourts.gov/case/pierson-v-post/" target="_blank" dir="ltr">Pierson v. Post</a> (a case from 1805 deciding the ownership of a fox), among other venerable precedents, to spell out the principle that the proper ownership analysis consists of determining (a) who owned the property originally; and (b) whether those rights were later transferred to someone else.The Second Circuit then went on to hold that Gutman clearly owned the accounts at their creation if she originally created them using her personal information and for her personal use (a factual issue for the district court to decide on remand). If Gutman did own the accounts at their creation, the next question is whether JLM later acquired the accounts by operation of the contract. The Second Circuit makes clear that this question does not turn on whether Gutman assigned specific content to JLM under the contract, or whether others were permitted to assist in managing the accounts. In a rebuke to the district court, the Second Circuit said:Determining ownership by reference to such principles would promote transfer by surprise and complicate contractual arrangements under which an account owner might agree to advertise another’s goods on his or her platform.The contract allocated ownership of the following materials to JLM as works for hire: “designs, drawings, notes, patterns, sketches, prototypes, samples, improvements to existing works, and any other works conceived of or developed by [Gutman] in connection with her employment with [JLM] involving bridal clothing, bridal accessories and related bridal or wedding items.” (Emphasis added.) The district court interpreted the accounts to be “other works” under this language, and therefore held that Gutman had transferred ownership of the accounts to JLM.The Second Circuit rejected the district court’s analysis based on ejusdem generis, a general principle of contract construction that requires that general terms at the end of a list include only objects similar to the specific items in the list. The Second Circuit noted that the listed items were all creative materials that Gutman might produce in her work as a designer, consisting primarily of copyrightable subject matter. A social media account, in contrast, does not share any of those attributes. Therefore, the Second Circuit instructed the district court to reassess the ownership question using the proper ownership test and the foregoing principles, with the strong inference that it might then conclude that Gutman is the legal owner of the accounts.ConclusionIn Gutman, the Second Circuit endorsed a test of social media account ownership that is perhaps not as simple as it seems. In broad terms, the Gutman analysis requires us to look at who owned the account when it was created, and then see if it was later transferred or assigned to someone else. Given the court’s reference to determination of initial ownership by the circumstances of its creation, including whether it was created for personal use, this analysis is inherently fact-driven and will likely not have a clean answer in a world where influencers tend to leverage their personal lives for business gains.Notably, the Second Circuit’s approach implicitly accepts that a social media account is property in the first instance, a proposition that prior courts have not always been sure about, even though they generally accept the principle as a matter of convenience. For example, in <a href="https://caselaw.findlaw.com/court/us-ban-crt-s-d-flo-for-lau-div/2289548.html">In re: Vital Pharmaceutical</a> (the Florida bankruptcy case mentioned above), the bankruptcy court noted:<blockquote dir="ltr">Describing a user’s interest in a social media account is difficult. With respect to some sites, such as TikTok and Twitter, a social media user’s right to use the platform is defined as a “license.” But, in some cases, such as Instagram, that right is not defined at all. For ease of reference, the Court will refer to “ownership of the rights to social media accounts” to encompass whatever rights a user has—whether it be a license or otherwise—to access and use a social media account.</blockquote>Despite these issues, Gutman may enable other courts to streamline their analysis of these issues. While it is not necessarily easy to determine whether an account was owned by an employee or a company at creation, knowing that a court will ultimately rule on ownership of the account according to traditional principles of property law should enable both employees and companies to enter into employment contracts that make ownership of social media accounts more predictable, by, for example, expressly assigning social media accounts used for any company business to the company (note that it would be fairly simple for a company to include language in its employment contract eliminating the ejusdem generis issue described above), implementing strict procedures for creation of such social media accounts, and/or requiring the employee to promise to use company-related social media accounts only in certain ways.

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.

Here at Socially Aware, we have been discussing issues around ownership of social media accounts since the beginning of social media. 

Owned: Second Circuit Holds That Traditional Principles of Property Law Apply to Social Media Accounts

Welcome to 2024 from Socially Aware! We’ve been tracking developments in the law and business of social media and related topics from end of last year into the beginning of the new year.Here are some of the trending developments that have caught our attention.Michael Cohen, Donald Trump’s former lawyer, used Google’s AI tool, Bard, to <a href="https://www.axios.com/2023/12/29/michael-cohen-ai-fake-legal-cases" target="_blank">find cases in support of his release from post-prison supervision</a>. Cohen’s lawyer, David Schwartz, neglected to verify the cases before including them in his brief and, as it turned out, some of the cases were fake. The use of AI in legal research has judges and courts on alert, as the legal system grapples with governing, and in some cases banning, AI for such purposes.The U.S. Copyright Office <a href="https://www.govinfo.gov/content/pkg/FR-2024-01-03/pdf/2023-28724.pdf" target="_blank">plans to implement a “group registration option”</a> that would allow online publishers to register their news websites, most of which are updated frequently, as collective works with a deposit of identifying material, instead of the entire website. Typically, copyright registration requires the publisher to submit two complete copies of the “best edition of the work,” but this is often not practical for constantly changing online news sites.The LGBTQ+ dating app Grindr <a href="https://www.bloomberglaw.com/public/desktop/document/PlaintiffJOHNDOEvGRINDRINCetalDefendantsNo223CV02093ODWPDX2023BL4?doc_id=X310U1B0000N" target="_blank">avoided a lawsuit brought against it by an underaged user</a> who claimed that, due to a design defect, the app did not verify his age and connected him with four men who sexually abused him. U.S. District Judge Otis Wright in the Central District of California <a href="https://docs.justia.com/cases/federal/district-courts/california/cacdce/2:2023cv02093/878953/45" target="_blank">dismissed the case</a>, holding that Section 230 barred the plaintiff’s claims. The court rejected the plaintiff’s invocation of the Ninth Circuit’s decision in <a href="https://www.sociallyawareblog.com/topics/ninth-circuits-snap-decision-limits-section-230-immunity" target="_blank">Lemmon v. Snap</a>, which held that Section 230 did not apply to negligent design claims that did not treat the defendant website as a “publisher or speaker” of “information provided by another information content provider.” Unlike in Lemmon, the court held, the plaintiff’s claims here were, in fact, based on Grindr’s publication of third-party content, namely geolocation data and user profiles. The court also rejected the plaintiff’s argument that <a href="https://www.sociallyawareblog.com/topics/ninth-circuit-interprets-fosta-restriction-on-section-230-narrowly" target="_blank">FOSTA’s sex trafficking exception to Section 230</a> should apply, noting that plaintiff did not allege that Grindr’s own conduct violated the underlying sex trafficking laws and that, even if Grindr “turned a blind eye” to sex trafficking on its app, as the plaintiff alleged, that was not sufficient to come within the FOSTA exception to the Section 230 safe harbor.The <a href="https://www.billboard.com/business/legal/no-ai-fraud-act-congress-federal-law-explained-1235578930/" target="_blank">No Artificial Intelligence Fake Replicas and Unauthorized Duplications Act</a>, or No AI FRAUD Act, is a proposed bill from the House of Representatives that would create a new federal framework to regulate use of AI technology to clone people’s voices and likenesses. Introduced by Representatives María Elvira Salazar (R, Florida) and Madeleine Dean (D, Pennsylvania), the act intends to unify the current patchwork of state laws surrounding the right of publicity. According to Dean, “Not only does our bill protect artists and performers, but it gives all Americans the tools to protect their digital personas. By shielding individuals’ images and voices from manipulation, the No AI FRAUD Act prevents artificial intelligence from being used for harassment, bullying, or abuse.”In late December 2023, <a href="https://news.bloomberglaw.com/product/blaw/bloomberglawnews/exp/eyJpZCI6IjAwMDAwMThjLTg3YmMtZDRlMC1hM2NkLWVmYmRmNDM4MDAwMiIsImN0eHQiOiJURU5XIiwidXVpZCI6IitYYks1YlpPWFVhS0tkRXV4SXJHTmc9PTBWZzNSK2ViVW1seVVNSXJVR2JnRGc9PSIsInRpbWUiOiIxNzAzMjQ2MjgxMTEyIiwic2lnIjoiR1YrajZmcE82U2VIU3dtRjhjWXdjcTNwSTkwPSIsInYiOiIxIn0=?source=newsletter&item=headline&region=digest" target="_blank">several states considered enacting laws in 2024 that would curtail or restrict the use of AI in political campaigns</a>, echoing growing concerns about the new technology’s use in creating and disseminating misinformation about candidates and issues, often referred to as “deepfakes.” According to Bloomberg Law, “Deepfakes are images or videos of a person’s likeness or other related things that have been digitally altered in a bid to misrepresent what happened in reality.” These proposed bills would require disclosures if AI technology was used to generate image, video, or audio of candidates. <a href="https://www.citizen.org/article/tracker-legislation-on-deepfakes-in-elections/" target="_blank">Approximately 25 states </a>have introduced or passed legislation regarding AI in political campaigns.Google is implementing a Chrome browser feature <a href="https://www.mediapost.com/publications/article/392364/google-chromes-third-party-cookie-phaseout-forcin.html?utm_source=newsletter&utm_medium=email&utm_content=headline&utm_campaign=132869&hashid=Azad4XFYCcz6KIOGFqRTBpKIuPE" target="_blank">that cuts off websites’ access to third-party cookies. The initial implementation of the feature, referred to as Tracking Protection, rolled out to 1% of Chrome users </a>in early January. When activated, the feature blocks a website’s access to third-party cookies, which websites use to track user behavior and target them with ads and other marketing content.The new year also saw news organizations <a href="https://arstechnica.com/information-technology/2024/01/at-senate-ai-hearing-news-executives-fight-against-fair-use-claims-for-ai-training-data/">ask Congress for clarification that the use of copyrighted journalistic content to train generative AI large language models </a>is not fair use. Condé Nast CEO Roger Lynch commented, “if Congress could clarify that the use of our content for training and output of AI models is not fair use, then the free market will take care of the rest.” Senator Josh Hawley, one of the lawmakers who is considering introducing AI legislation, had this to offer: “If the AI companies—which are really just the big tech companies—if their reading of fair use prevails, fair use is going to be the exception that swallows the rule. . . . We’re not going to have any copyright law left.”

Social Links: AI Continues to Make the Headlines in 2024